DATE: September 11, 2006

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG

APPEARANCES

FOR GOVERNMENT

Robert E. Coacher, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Unbeknownst to Applicant, two women filed child support claims against him in California, which he discovered when he received a credit report to use in financing the purchase of his home. Applicant is paying the claims, has custody of one of the children, and is contesting paternity in the other. Clearance is granted.

STATEMENT OF THE CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. As required by Department of Defense Directive 5220.6 ¶ E3.1.2 (Jan. 2, 1960), as amended, DOHA issued a Statement of Reasons (SOR) on 4 January 2006 detailing the basis for its decision-security concerns raised under Guideline F (Financial Considerations) of the Directive. Applicant answered the SOR in writing on 17 January 2006 and elected to have his case decided without a hearing. The Department Counsel originally assigned to the case prepared a file of relevant material (FORM), dated 22 February 2006, and sent it to Applicant. Applicant wrote the following on the FORM and returned it to Department Counsel: "I would like to request a hearing. I have recent relevant material and documents I would like to report." Apparently the original Department Counsel agreed to this request and abandoned the FORM. There is no evidence Department Counsel has authority to grant such a request, but in the interests of expeditiously processing this case, I decided to conduct the hearing.

The case was assigned to another administrative judge on 20 April 2006 and transferred to me on 20 July 2006. On 1 August 2006, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. I left the record open for Applicant to submit additional evidence and received Ex. C, without objection from Department Counsel. DOHA received the hearing transcript (R.) on 11 August 2006.

FINDINGS OF FACT

Applicant is a 42-year-old operations project engineer for a defense contractor. He was graduated from college in California in 2002. Shortly thereafter, he moved to Utah.

In the Spring of 2004, after he submitted his security clearance application (SCA), Applicant obtained a credit report so he could apply for a construction loan. The credit report revealed a lien for child support arrearage issued by a county court in California. He inquired as to this lien and was informed that the case listed on his credit report did not exist. The court ordered Applicant's credit report corrected. Ex. 4 at 1. But soon thereafter, Applicant received notice from that county child support agency that two cases for child support and reimbursement for public assistance had been reopened against him. Id.

One of the cases was initiated by TW, a woman with whom Applicant had had a relationship many years ago. She had obtained a default paternity judgment against Applicant and applied for food stamps and child support for her child. Applicant had seen the child shortly after its birth in 1988, but denied it was his. The county reported Applicant owed more than $37,800 on that account. The child is now 18 years old and married.

The second case involved a boy, born to Applicant and CB in 1995, while Applicant was enrolled college. He provided CB with support for the child, but admits it was sporadic because he did not hold a full time job while he was attending college. Applicant and CB split up, but Applicant provided CB $300 a month since he gained full-time employment. Nevertheless, CB apparently filed for support through the county child support office. Because he had left California to take full time employment, Applicant was never served with notice and was not aware CB had filed for assistance. The county reported Applicant owed more than $9,900 on this account.

Because of Applicant's inquiries, the county learned where to find him and started to garnish his wages in March 2005. Meanwhile, Applicant learned that California had enacted a new law, effective January 2005, establishing a two-year period during which a person who had previously been established as a parent could contest parentage through genetic testing. Cal Fam Code § 7646. He located TW and her daughter via the Internet, and they agreed to genetic paternity testing. A national laboratory tested specimens provided by Applicant, TW, and her daughter under chain of custody procedures, and concluded the probability of Applicant being the father at 0.0%. Ex. A at 9.

Based on the results of the genetic paternity tests, and the new statute, Applicant petitioned the court to set aside the judgment of paternity in the case of TW's daughter. The county opposes Applicant's petition. It claims that, as the daughter has reached the age of 18, the court no long has either in personam or subject matter jurisdiction over the case. It also objects to the chain of custody procedure as not complying with that required in the statute. Applicant had a court date for 21 August 2006 to resolve the issue. If the Court sets aside the judgment of paternity, it will wipe out more than $11,000 of his debt.

Applicant's son is now 10 years old, and in March 2006 moved to Utah to live with Applicant. The boy's mother has closed the case against Applicant, so all he owes is the arrearage. Applicant earns over $5,000 a month and is able and willing to make the payments on the arrearage.

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, 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." Id. at 527. The President authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information "only upon a finding that it is clearly consistent with the national interest to do so." Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960). Each security clearance decision "must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy." Directive ¶ 6.3. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

CONCLUSIONS

Guideline F--Financial Considerations

In the SOR, DOHA alleged Applicant had two child support accounts totaling more than $20,600 that were delinquent. In his Answer, Applicant admitted the debts, but asserted he was then delinquent in the amount of $16,355.

An applicant who is financially overextended is at risk of having to engage in illegal acts to generate funds. Directive ¶ E2.A6.1.1. Failure or inability to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. The evidence established Applicant has a history of not meeting his financial obligations DC E2.A6.1.2.1.

An applicant may mitigate financial security concerns by establishing the debts resulted from behavior largely beyond the applicant's control (MC E2.A6.1.3.3) or he initiated a good-faith effort to repay overdue creditors or otherwise resolve his debts (MC E2.A6.1.3.6). The debts became delinquent because Applicant was not notified in a timely manner that the mothers of his children had filed child support and financial assistance claims with the state. He had supported the child he believed was his and has made good-faith efforts to resolve these debts by paying on the arrearages and contesting the paternity of the girl. I conclude both MC E2.A6.1.3.3 and E2.A6.1.3.6 apply.

The Whole Person

"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." Directive E2.2.1. "Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination." Id. In evaluating Applicant's case, I have considered the adjudicative process factors listed in the Directive ¶ E2.2.1.

The delinquent debts resulted from the failure of the state of California to notify Applicant of the debt. Applicant has been paying on the debts and has sought to legally resolve the paternity of TW's daughter. He has custody of his son and is caring for him. Under all the circumstances of this case, I find Applicant failed to pay these debts because he was not aware of them and there is almost no likelihood of recurrence. I find for Applicant on ¶ 1.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR:

Paragraph 1. Guideline F: FOR APPLICANT

Subparagraph 1.a: For Applicant

DECISION

In light of all of the circumstances in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is granted.

James A. Young

Administrative Judge