DATE: May 19, 2006
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
JUAN J. RIVERA
APPEARANCES
FOR GOVERNMENT
Daniel F. Crowley, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant has a history of failing to meet his financial obligations dating back to the mid 1980s. As of the date he answered the SOR, he had 13 delinquencies he has been carrying for many years. He established circumstances beyond his control contributing to his inability to pay his debts. Notwithstanding, he is financially overextended and failed to show that he is in control of his finances or that he made efforts to repay creditors or otherwise resolve his debts. He lacks a track record of financial responsibility and the circumstances contributing to his financial difficulties are likely to recur. Clearance is denied.
STATEMENT OF THE CASE
On May 6, 2005, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) alleging facts which raise security concerns under Guideline F (Financial Considerations). The SOR informed Applicant that, based on information available to the Government, DOHA adjudicators could not make a preliminary affirmative finding that it is clearly consistent with the national interest to grant his access to classified information. (1)
On June 4, 2005, Applicant answered the SOR (Answer), admitted all allegations, and requested a clearance decision based on the written record without a hearing. On February 28, 2006, Department Counsel prepared a File of Relevant Material (FORM) which was mailed to Applicant on March 1, 2006. He acknowledged receipt of the FORM on March 8, 2006, and did not object to anything contained in the FORM or submit additional information for consideration within the 30-day time period provided to him. The case was assigned to me on April 28, 2006.
FINDINGS OF FACT
Applicant admitted all the SOR allegations. His admissions are incorporated herein as findings of facts. After a thorough review of the pleadings and the evidence, I make the following additional findings of facts:
Applicant is 44 years old; he married his wife in 1981, and has two adult stepsons. It is not clear from his security clearance application (SF 86) (2) whether he completed high school, however, he attended a vocational school from 1976 to 1980. He has worked as an electrician from 1984 to the present. With the exception of a three-month period of unemployment in early 2002, Applicant has been continuously employed since 1984. Applicant works for a company doing business with the Department of Defense (DOD). In April 2002, he applied for a different position within the company and requires access to classified information to qualify for the job. There is no evidence Applicant has ever mishandled or otherwise risked the compromise of classified information.
In 1986, a defense investigator interviewed Applicant concerning possible financial concerns. (3) After being confronted with delinquencies on a credit report, he stated he was not aware of the delinquencies because his wife was in charge of the household finances. He promised to establish payment plans and resolve his financial problems. (4) The credit report used to confront Applicant showed 10 accounts, nine of which were delinquent (bad debts or 90 days due or in collection). (5)
In December 1996, Applicant and his wife filed for Chapter 7 bankruptcy protection, and they were discharged of their debts in January 1997. He had $2,030 in assets and $26,849 in liabilities. (6)
In May 2003, Applicant submitted an SF 86 in which he disclosed that in the last seven years he had 10 debts more than 180 days delinquent, nine of which were for passing bad checks. He also disclosed six additional accounts in which he was over 90 days delinquent; one involved a bad check. In the general remarks section of the SF 86 (question 43), Applicant explained his financial problems were the result of several factors: in 2002 he was out of work for three months when he moved from one state to another; in early 2002 he provided financial assistance to both of his adult stepsons; his wife was handling the household finances and was writing checks without sufficient funds; and he had additional expenses caused by higher utility and telephone bills.
In April 2004, Applicant provided a statement (7) to a government investigator in which he acknowledged numerous delinquencies reflected on his March 2004 credit report. (8) Applicant stated he and his wife were in the process of contacting creditors to make arrangements to resolve their debts. He claimed the debts were caused by his unemployment from about January to April 2001, (9) when he moved from one state to another and had no job. His unemployment caused him to get behind on many of his financial obligations, and he was now getting back to the point where he could start resolving some of the debts. Applicant averred the delinquencies were not caused by their financial irresponsibility, that their current financial situation was stable, and that they were paying their bills on time every month. He further stated they had the means and willingness to resolve their delinquencies. Applicant also provided a personal financial statement indicating that in 2004 his gross monthly income was $4,000, and after deducting expenses and debts, he had a remainder of $760. However, the personal financial statement also indicates Applicant had $18,000 in delinquent debt with no payments scheduled or being made toward this debt.
The SOR alleges 13 delinquent accounts, totaling $9,153, which Applicant admitted without explanation. Applicant provided no additional information concerning when or how he acquired the debts; whether he has paid off any of the debts, or whether has made any effort to resolve the debts as he promised when he submitted his SF 86 in 2003. There is no information as to how he intends to resolve his financial predicament or what he has done or intends to do to prevent it from happening again. In light of the available evidence, I find that all the delinquencies alleged in the SOR are still outstanding.
POLICIES
The Directive sets forth adjudicative guidelines which must be considered in evaluating an Applicant's eligibility for access to classified information. The administrative judge must take into account both disqualifying and mitigating conditions under each adjudicative guideline applicable to the facts and circumstances of the case. The guidelines are not viewed as inflexible ironclad rules of law. The presence or absence of a disqualifying or mitigating condition is not determinative of a conclusion for or against an Applicant. Each decision must reflect a fair and impartial common sense consideration of the factors listed in Section 6.3 of the Directive, and the whole person concept. Having considered the record evidence as a whole, I conclude Guideline F (Financial Considerations) (10) is the applicable relevant adjudicative guideline.
BURDEN OF PROOF
The purpose of a security clearance decision is to determine whether it is clearly consistent with the national interest to grant or continue an applicant's eligibility for access to classified information. (11) A person who has access to classified information enters into a fiduciary relationship with the government based on trust and confidence. The government, therefore, has a compelling interest to ensure each applicant possesses the requisite judgement, reliability and trustworthiness of one who will protect the national interests as his or her own.
The government has the initial burden of proving controverted facts alleged in the SOR. To meet its burden, the government must establish by substantial evidence (12) a prima facie case that it is not clearly consistent with the national interest for the applicant to have access to classified information. The responsibility then shifts to the applicant to refute, extenuate or mitigate the government's case. Because no one has a right to a security clearance, the applicant carries a heavy burden of persuasion. (13) The "clearly consistent with the national interest" standard compels resolution of any reasonable doubt about an applicant's suitability for access to classified information in favor of protecting national security. (14)
CONCLUSIONS
Under Guideline F (Financial Considerations), a security concern exists when a person has significant unpaid debts. An individual who is financially overextended is at risk to engage in illegal or unethical acts to generate funds to meet financial obligations. (15) Similarly, an individual who is financially irresponsible may also be irresponsible, unconcerned, or careless in his obligation to protect classified information. Behaving responsibly or irresponsibly in one aspect of life can often indicate how a person may behave in other aspects of life.
Applicant has a history of failing to meet his financial obligations dating back to the mid 1980s. In 1986, he was confronted by a government investigator about his then financial problems, and was made aware of the government's concerns about his financial situation. He acknowledged the problems and promised to resolve his financial situation. In 1996, he filed for Chapter 7 bankruptcy protection, and in 1997, he was discharged of $26,849 in accumulated debts.
In his 2003 SF 86, Applicant disclosed additional financial problems compounded by at least 10 checks issued without sufficient funds. As of June 2005, when he submitted his response to the SOR, Applicant still had 13 outstanding delinquencies (one of them from 1997, many from 2001 to 2002) totaling $9,153. any of the debts alleged are for relatively small delinquencies he has been carrying for years. Applicant's financial problems are recent, not isolated, and ongoing. Applicant's unwillingness or inability to honor his financial obligations is evidenced by the delinquent debts he has been carrying for years, and his failure to make meaningful efforts to repay creditors or otherwise resolve his financial situation. Financial Considerations Disqualifying Condition (FC DC) 1: A history of not meeting financial obligations; and FC DC 3: Inability or unwillingness to satisfy debts, apply in this case.
Applicant raised several mitigating factors that may be considered as circumstances beyond his control contributing to his inability to pay his debts -- i.e., his 2002 move from one state to another with the resulting three months period of unemployment; providing financial assistance to his sons; and the additional expenses associated with his move. Financial Considerations Mitigating Condition (FC MC) 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) applies.
Notwithstanding the circumstances beyond his control, Applicant presented little or no evidence to show he has dealt responsibly with his financial obligations. Other than the 1997 bankruptcy discharge, Applicant presented no evidence of paid debts, settlements, negotiations, payment plans, budgets, financial assistance/counseling, or that he has otherwise made any effort to resolve his financial situation. Further, he failed to present sufficient evidence to show why his financial problems will not be a concern in the future.
Applicant is financially overextended, and his financial situation has already caused him to become overdrawn in his checking account at least 10 times to cover his obligations. Applicant's financial history precludes a finding that he has established a track record of financial responsibility. I find that Applicant has not taken or is unable to take control his financial situation and failed to demonstrate he is or could be capable of overcoming his financial difficulties.
Considering all relevant and material facts and circumstances present in this case, including Applicant's statements, the circumstances that caused him to become delinquent, the actions he took to rectify his financial situation, the whole person concept, the adjudicative factors listed in the Directive, and the applicable disqualifying and mitigating conditions, I find Applicant has not mitigated the Guideline F security concern.
FORMAL FINDINGS
Formal findings regarding each SOR allegation as required by Directive Section E3.1.25 are as follows:
Paragraph 1, Financial Considerations (Guideline F) AGAINST APPLICANT
Subparagraphs 1.a - 1.n Against 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 Applicant. Clearance is denied.
Juan J. Rivera
Administrative Judge
1. Required by Executive Order 10865, Safeguarding Classified Information Within Industry (Feb. 20, 1960, as amended, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992) (Directive), as amended.
2. Item 4.
3. Item 6.
4. Id.
5. Item 5.
6. Item 7.
7. Item 10.
8. Item 9. Applicant disputed one account owed to a realtor, but presented no evidence to corroborate that he has made efforts to formally dispute the debt.
9. Applicant's statement in the SF 86 indicated his move and period of unemployment happened in 2002.
10. Directive, ¶ E2.A6.1.1.
11. See Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).
12. ISCR Case No. 98-0761, at p. 2 (December 27, 1999)(Substantial evidence is more than a scintilla, but less than a preponderance of the evidence.); ISCR Case No. 02-12199, at p. 3 (April 3, 2006)(Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.); Directive, ¶ E3.1.32.1.
13. Egan, 484 U.S. 518, at 528, 531.
14. See Egan; Directive, ¶ E2.2.2.
15. Directive, ¶ E2.A6.1.1.