DATE: August 28, 2006

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

Applicant for ADP I/II/III Position

DECISION OF ADMINISTRATIVE JUDGE

ERIN C. HOGAN

APPEARANCES

FOR GOVERNMENT

J. Theodore Hammer, Esq., Department Counsel

Stephanie Hess, Esq., Department Counsel

FOR APPLICANT

Fern Ward, Esq.

SYNOPSIS

Applicant has approximately $10,544 in delinquent debt. Although he has paid off one debt and is making payments towards two other debts, no action has been taken to resolve the majority of the debts. His plan to pay off each debt one at a time until the debts are resolved in 2012 is too speculative and does not take into account any unplanned financial issues. His initial steps to deal with his financial delinquencies occurred too late. A promise to pay in the future does not mitigate the security concern under financial considerations. I find Applicant did not intentionally falsify his security clearance questionnaire. However, based on his past financial history, it is too soon to conclude his financial situation is under control. Applicant's eligibility for assignment to a sensitive position is denied.

STATEMENT OF THE CASE

On November 21, 2003, Applicant submitted an application for a position of public trust - an ADP I/II/III position. The Defense Office of Hearings and Appeals (DOHA) declined to grant the application under Department of Defense Regulation 5200.2-R, Personnel Security Program, (Jan, 1987), as amended, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended (the "Directive"). ⁽¹⁾ On September 20, 2005, DOHA issued Applicant a Statement of Reasons (SOR) detailing the basis for its decision. The SOR, which is in essence the administrative complaint, alleged security concerns under Guideline F, Financial Considerations, and Guideline E, Personal Conduct.

In a sworn statement dated October 18, 2005, Applicant responded to the SOR allegations and requested a hearing. The case was assigned to me on March 2, 2006. A notice of hearing was issued on arch 29, 2006, scheduling the hearing for May 17, 2006. The hearing was conducted on that date. The government submitted five exhibits that were marked as Government Exhibits (Gov Ex) 1-5 and admitted without objection. Applicant testified on his own behalf, presented one character witness, and submitted seven exhibits which were marked and admitted as Applicant Exhibits (AE) A-G. The record was held open until May 31, 2006. Applicant timely submitted five exhibits that were marked as AE H-K. The exhibits were admitted without objection. DOHA received the hearing transcript (Tr.) on May 25, 2006.

FINDINGS OF FACT

In his SOR response, Applicant admits the allegations under Guideline F, ¶¶ 1.a - 1.h, 1.k -1.m and Guideline E ¶ 2.a. He denies the allegations in ¶¶ 1.i and 1.j. Applicant's admissions are incorporated herein. In addition, after a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact:

Applicant is a 34-year-old man employed as a deskside technician with a Department of Defense contractor who is seeking a position of public trust. ^{(2) (3)} He is single and has no children. ⁽⁴⁾ He provides $750 each month in support for his mother. ⁽⁵⁾ He has a high school education. He is certified in several computer programs to include A+ and Microsoft. ⁽⁶⁾ He also received training at the Reserve Police Academy in his home state. ⁽⁷⁾

Applicant has worked for his current employer since October 2003. ⁽⁸⁾ On November 21, 2003, Applicant completed a Questionnaire for Public Trust Position (SF 85-P). ⁽⁹⁾ In response to question "20. Your Financial Record - 180 Day Delinquencies. Are you now over 180 days delinquent on any loan or financial obligation? (Include loans or obligations funded or guaranteed by the Federal Government)" he answered, "No." A subsequent background investigation revealed Applicant has 12 delinquent accounts with a total approximate balance of $10,544. ⁽¹⁰⁾ The accounts included an $882 credit card account charged off in February 2001 (SOR ¶ 1.a); a $1,492 credit card account charged off in February 2001 (SOR ¶ 1.b); a $1,252 credit card account turned over for collection in August 2001 (SOR ¶ 1.c); a $1,143 credit card account placed for collection in August 2001 (SOR ¶ 1.d); a $913 credit account charged off in August 2001 (SOR ¶ 1.e); a $469 department store credit card account charged off in August 2001 (SOR ¶ 1.f); a $974 electronics store account charged off in August 2001 (SOR ¶ 1.g); a $1,124 electronics store account placed for collection in August 2001 (SOR ¶ 1.h); a $308 medical account placed for collection in September 2001 (SOR ¶ 1.i); a $308 cell phone account placed for collection in November 2003 (SOR ¶ 1.j); a $1,510 gas station credit card placed for collection in December 2003 (SOR ¶ 1.k); and a $169 Direct TV account placed for collection in January 2004. (SOR ¶ 1.l). ⁽¹¹⁾

The current status of the delinquent debts are:

Prior to accepting his current position, Applicant lived with his mother in another state. They shared living expenses. They struggled financially since his mother only made $6.16 an hour and he was employed in several low paying jobs between 1995 to 2003. ⁽¹²⁾ In 1999, Applicant got his first credit card. ⁽¹³⁾ In 2000, he and his mother purchased a home for $8000 from his great-uncle's estate. The expenses of owning a home further complicated their financial situation. He began to rely on credit cards for living expenses. ⁽¹⁴⁾

In October 2003, Applicant accepted a job with his current employer which was located in another state. He more than doubled his income. ⁽¹⁵⁾ He agreed to send his mother $375 each pay period to help her with her living expenses. He is paid every two weeks. He sends her approximately $750 each month via direct deposit. ⁽¹⁶⁾

In November 2003, Applicant incurred unforeseen medical expenses. He broke a tooth and discovered he needed some extensive dental work. In January 2004, he injured his back. In March 2005, he was treated for allergies and it was discovered he had an irregular heart rate. As a result, he was prescribed medication. ⁽¹⁷⁾ All of the medical bills which were not covered by insurance have been paid with the exception of an MRI for $415 which was turned over for collection in January 2004. ⁽¹⁸⁾

On September 15, 2004, Applicant was interviewed by a Special Investigator for the Office of Personnel Management regarding his delinquent debts. He acknowledged his debts and indicated that he planned to have all of his debts either paid in full or in a manageable status within six months. He denied the debt in SOR ¶ 1.i indicating it should have been paid by insurance. ⁽¹⁹⁾ In his answer to the SOR, he also denied SOR ¶ 1.j. The debt was a cell phone account. He claims that this was a pre-paid service account with no contract. He is disputing both debts. ⁽²⁰⁾

In November 2005, Applicant started making payments towards the credit card account alleged in SOR ¶ 1.b. He pays $100 per month and hopes to pay the account off by April 2007. ⁽²¹⁾ In March 2006, he paid off the Direct TV account alleged in SOR ¶ 1.l. ⁽²²⁾ In June 2006, he started payments towards the debt alleged in SOR ¶ 1.f. He intends to pay $40 per month and will increase the payment to $140 per month once SOR ¶ 1.b is paid off. ⁽²³⁾ He intends to pay off each delinquent account in succession and hopes to have them all paid off by 2012. ⁽²⁴⁾ He has not contacted any of the creditors regarding his repayment plan. ⁽²⁵⁾

In November 2004, Applicant bought a used car. It was a 2004 model that was previously owned by a rental car company. The purchase price was $26,000. His car payment is $400 a month. ⁽²⁶⁾ In February 2005, he received a state income tax return of $711 and a federal income tax return of $2179. ⁽²⁷⁾ This year, he received a federal income tax return of $2000 and a state income tax return of $700. He used part of this year's return to pay the debt in SOR ¶ 1.l for $169. He did not apply the remainder of his income tax returns towards his other delinquent accounts. He bought clothes and replaced the brakes on his car. ⁽²⁸⁾ In January 2005, he received a $500 bonus. He did not use the money towards his delinquent debts. ⁽²⁹⁾

On April 6, 2006, Applicant attended financial counseling. ⁽³⁰⁾ He does not have a formal repayment plan with his creditors. A few weeks before the hearing, he wrote up a budget. After expenses, he has approximately $29 left over each month. ⁽³¹⁾ His budget does not include payments to the creditors listed in SOR ¶¶ 1.a, 1.c, 1.d, 1.e, 1.g, 1.i, 1.j and 1.k.

Applicant is highly regarded at work. His supervisor testified that he is a conscientious worker who is good with the customers. As the resident Blackberry expert, they rely heavily upon his knowledge in this area. His supervisor has no reservations recommending him for a position of trust. ⁽³²⁾ The Executive Vice President and Chief Financial Officer of the company states they will support Applicant in his efforts to resolve his debts. ⁽³³⁾ His overall performance appraisal between October 2003 and October 2004 is "exceeds expectations." ⁽³⁴⁾ As a result of his excellent performance, he has received several pay raises. ⁽³⁵⁾

POLICIES

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." ⁽³⁶⁾ The President provided that eligibility for access to classified information shall be granted only 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." ⁽³⁷⁾

To be eligible for assignment to sensitive duties, an applicant must meet the security guidelines contained in DoD 5200.2-R. "The standard that must be met for . . . assignment to sensitive duties is that, based on all available information, the person's loyalty, reliability, and trustworthiness are such that . . . assigning the person to sensitive duties is clearly consistent with the interests of national security." ⁽³⁸⁾ The Regulation sets forth personnel security guidelines, as well as the disqualifying conditions and mitigating conditions under each guideline. ⁽³⁹⁾ The adjudicative guidelines at issue in this case are:

Financial Considerations - 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 or sensitive information. Behaving responsibly or irresponsibly in one aspect of life provides an indication of how a person may behave in other aspects of life.

Personal Conduct is a security concern when an individual's conduct involves questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations that could indicate that the person may not properly safeguard classified information.

Conditions that could raise a security concern and may be disqualifying, as well as those which could mitigate security concerns pertaining to these adjudicative guidelines, are set forth and discussed in the conclusions below.

"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." ⁽⁴⁰⁾ An administrative judge must apply the "whole person concept," and consider and carefully weigh the available, reliable information about the person. ⁽⁴¹⁾ An administrative judge should consider the following factors: (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 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. ⁽⁴²⁾

DoD contractor personnel are afforded the right to the procedures contained in DoD Directive 5220.6 before any final unfavorable access determination may be made. ⁽⁴³⁾ Initially, the Government must present evidence to establish controverted facts in the SOR that disqualify or may disqualify the applicant from being eligible for access to classified information. ⁽⁴⁴⁾ Thereafter, the applicant is responsible for presenting evidence to rebut, explain, extenuate, or mitigate the facts. ⁽⁴⁵⁾ An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ⁽⁴⁶⁾ "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." ⁽⁴⁷⁾

A person granted access to classified information enters into a special relationship with the government. The government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. The decision to deny an individual a security clearance is not a determination as to the loyalty of the applicant. (Exec. Ord. 10865, § 7.) It is merely an indication that the applicant has not met the strict guidelines the President has established for issuing a clearance.

CONCLUSIONS

I have carefully considered all the facts in evidence and the legal standards. I make the following conclusions.

Financial Considerations

Based on all the evidence, Financial Considerations Disqualifying Conditions (FC DC) E2.A6.1.2.1 (A history of not meeting financial obligations); and FC DC 3 E2.A6.1.2.3 (Inability or unwillingness to satisfy debts) apply to Applicant's case. Applicant has a history of not meeting his financial obligations since 2001. Although his financial situation has improved, he is unable to resolve his delinquent accounts. He has only $29 left over each month after expenses. Based on his current budget, he is unable to satisfy his delinquent debts.

I considered the Financial Considerations Mitigating Conditions (FC MC). The majority of Applicant's delinquent debt remains unresolved. Therefore, I cannot apply FC MC E2.A6.1.3.1 (The behavior was not recent), and FC MC E2.A6.1.3.2 (The behavior was isolated) because he still carries a significant amount of delinquent debt.

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)) applies to some degree since Applicant encountered some unforeseen medical and dental expenses in 2003 and 2004. However, I cannot conclude that the medical and dental expenses were so burdensome that it prevented Applicant from paying his delinquent accounts. He had the option to monitor his expenses and to come up with a plan to repay his creditors earlier in the process. He was put on notice in September 2004 that his delinquent debts would be an issue in his trustworthiness determination when he was interviewed as part of his background investigation. He did not seek financial counseling until April 2006. When he purchased a car in 2004, he could have shopped around for a less expensive car. He had the opportunity to pay off some of the delinquent debt with his 2004 and 2005 state and federal tax returns. While he paid the $169 debt (SOR ¶ 1.1) with part of his tax return, he spent the remaining money received from his tax returns on other items.

I cannot apply FC MC E2.A6.1.3.4 (The person has received or is receiving counseling for the problem and there are clear indications that the problem is being resolved or under control) since much of the debt remains unresolved. One month prior to the hearing and seven months after the SOR was issued, Applicant attended financial counseling. The action taken towards resolving his delinquent accounts occurred too late. Much of the debt remains delinquent. It is likely the balances will grow on some of the accounts due to interest and late fees. His financial problems are not likely to be resolved in the near future.

FC MC E2.A6.1.3.6 (The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts) cannot be applied as well. Although he has paid off one of the debts and is making payments towards SOR ¶¶ 1.b and 1.g, he has taken no steps to resolve the other accounts. He disputes SOR ¶¶ 1.i and 1.j. However, there is no documentary evidence showing that he entered a formal dispute against either creditor. At the close of the record, Applicant had not contacted the majority of his delinquent creditors about resolving these debts. Based on Applicant's past financial history, it is too soon to conclude that his financial situation will be resolved. He has failed to mitigate the security concern under Guideline F.

Personal Conduct

In his answer to the SOR, Applicant admits he did not list all of his delinquent debts on his Questionnaire for Public Trust Position Application (SF 85 P) in response to question 20. However, he maintains that this omission was not intentional. He misunderstood the question. He thought the question required him to list only loans or obligations funded or guaranteed by the federal government. I find it plausible that he could have misunderstood the question. Question 20 reads:

20. Your Financial Record - 180 Day Delinquencies. Are you now over 180 days delinquent on any loan or financial obligation? (Include loans or obligations funded or guaranteed by the Federal Government). ⁽⁴⁸⁾

Based on my observation of Applicant's testimony at hearing and his educational background, I find that he did not intentionally falsify his Questionnaire for Public Trust Position Application (SF 85 P). I find for the Applicant under Guideline E.

In all adjudications, the protection of our national security is the paramount concern. The objective of the trustworthy determination process is the fair-minded, commonsense assessment of a person's life to make an affirmative determination that the person is eligible for assignment to sensitive duties. Indeed, the adjudicative process is a careful weighing of a number of variables in considering the "whole person" concept. It recognizes that we should view a person by the totality of their acts, omissions, motivations and other variables. Each case must be adjudged on its own merits, taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis.

I have considered all the evidence and the "whole person" in evaluating Applicant's trustworthiness. An applicant with a good or even exemplary work history may engage in conduct that has negative trustworthy implications. Although Applicant's loyalty to the United States is not in question, I am persuaded by the totality of the evidence that he failed to mitigate the trustworthiness concerns regarding Guideline F, and that it is not clearly consistent with the national interest to grant Applicant eligibility for assignment to sensitive duties. Eligibility is denied.

FORMAL FINDINGS

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. Guideline F: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant

Subparagraph 1.c: Against Applicant

Subparagraph 1.d: Against Applicant

Subparagraph 1.e: Against Applicant

Subparagraph 1.d: Against Applicant

Subparagraph 1.e: Against Applicant

Subparagraph 1.f: Against Applicant

Subparagraph 1.g: Against Applicant

Subparagraph 1.h: Against Applicant

Subparagraph 1.i: Against Applicant

Subparagraph 1.j: Against Applicant

Subparagraph 1.k: Against Applicant

Subparagraph 1.l: For Applicant

Subparagraph 1.m: Against Applicant

Paragraph 2. Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant

DECISION

In light of all of the evidence presented in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for assignment to sensitive duties. Eligibility is denied.

Erin C. Hogan

Administrative Judge

1. This action was taken under Executive Order 10865, dated February 20, 1960,as amended.

2. Gov Ex 1; Tr. at 30.

3. Gov Ex 1 and 2.

4. Tr. at 29.

5. Id.

6. Tr. at 30.

7. Id.

8. Tr. at 31.

9. Gov Ex 1.

10. Gov Ex 3, 4, 5.

11. Id.

12. Tr. at 54; AE A; Answer to SOR.

13. Tr. at 68.

14. Tr. at 69-72.

15. Tr. at 96.

16. Tr. at 29-30, 54; see AE B.

17. Tr. at 46- 51, 87.

18. Tr. at 52, 93.

19. Gov Ex 2; Tr. at 39, 75-77.

20. Answer to SOR; Tr. at 40, 77-81.

21. Tr. at 62-63; 98-100.

22. Tr. at 41, 61; AE H at 17.

23. Tr. at 62; 99-100.

24. Tr. at 62; AE F.

25. Tr. at 101.

26. Tr. at 85-87.

27. AE H at 10-11.

28. Tr. at 102-103.

29. Tr. at 113.

30. AE G.

31. Tr. at 96; AE E.

32. Tr. at 23-27.

33. AE F.

34. AE K.

35. AE L.

36. Department of the Navy v. Egan, 484 U.S. 518, 527 (1988).

37. Exec. Or. 12968, Access to Classified Information, § 3.1(b) (Aug. 4, 1995).

38. DoD 5200.2-R, ¶ C6.1.1.1.

39. Id. at Appendix 8.

40. Id.

41. Id.

42. Id.

43. Id. at ¶ C8.2.1.

44. Directive , ¶ E3.1.14.

45. Id. at ¶ E3.1.15.

46. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002).

47. Directive, ¶ E2.2.2.

48. Gov Ex 1 at 20.