DATE: February 20, 2007

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

CHRISTOPHER GRAHAM

APPEARANCES

FOR GOVERNMENT

Fahryn Hoffman, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant is a 32-year-old employee of a federal contractor. His outstanding indebtedness has remained for up to four to six years. He and his wife had a small business failure, his wife lost her job due to medical reasons, and a family member was killed, and they made a decision to move to help the widow and two children. He is not making progress on resolving this old indebtedness. He did not deliberately falsify answers on a security clearance application. He successfully mitigated security concerns involving financial considerations and personal conduct under the whole person concept. 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 April 14, 2006, detailing the basis for its decision - security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of the Directive. Applicant answered the SOR in writing on June 28, 2006, and requested a hearing before an administrative judge. The case was assigned to me on September 6, 2006. The Notice of Hearing was issued on October 2, 2006. I convened a hearing on November 2, 2006, to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The government offered six exhibits, marked as exhibits 1-6. Applicant offered four exhibits, marked as exhibits A-D. I kept the record open until November 17, 2006, to allow Applicant time to file additional documents. On November 16, 2006, Department Counsel received Applicant's undated letter, with a list of creditors with current debt amounts, and monthly payment amounts, undated and unsigned. I marked this as Applicant's Exhibit E. The government filed a memorandum on November 17, 2006, making no objection to its admission. Applicant's Exhibit E is admitted. DOHA received the hearing transcript (Tr.) on December 8, 2006.

Applicant admitted the allegations contained in the SOR subparagraphs 1.a. through 1.g., and denied the allegations in subparagraphs 2.a. and 2.b. The admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 32-year-old employee of a federal contractor. ⁽¹⁾ He is married and has no children. ⁽²⁾ He served four and one-half years in the U.S. Marine Corps (USMC), receiving an honorable discharge as an E-4 in January 1998. ⁽³⁾ He has 80 hours toward a degree in radiology. ⁽⁴⁾ This is his first application for a security clearance. ⁽⁵⁾

Financial Considerations

As of October 12, 2005, Applicant owed the following debts:

1.a. $423 for a delinquent account referred for collection in October 2002; ⁽⁶⁾

1.b. $2,842 for a delinquent account referred for collection in March 2002; ⁽⁷⁾

1.c. $1,298 for a delinquent account referred for collection in July 2000; ⁽⁸⁾

1.d. $1,377 for a delinquent account charged off as a bad debt in September 2001; ⁽⁹⁾

1.e. $4,342 for a delinquent account referred for collection in September 2001; ⁽¹⁰⁾

1.f. $3,931for a delinquent account referred for collection in February 2002; ⁽¹¹⁾ and

1.g. $1,045 for a delinquent account charged off as a bad debt in June 2002. ⁽¹²⁾

At the hearing, Applicant testified that the outstanding balances remain the same. ⁽¹³⁾ He began using the services of a credit counseling service, which put him on a payment plan of $625 a month. He could not afford that amount, so no payments were ever made. ⁽¹⁴⁾

In 1999, Applicant and his wife started a small business, operated out of a kiosk in a mall. They used credit cards to start the business, and one year later, they closed the business due to poor sales. They lost about $5,000 to $7,000. ⁽¹⁵⁾ About the same time, Applicant's wife lost her job due to medical reasons. She subsequently started an eBay business using the Internet. ⁽¹⁶⁾ The following year, his brother-in-law was killed in a work-related accident, leaving his wife and two children, ages 4 and 13. ⁽¹⁷⁾ Applicant and his wife moved back to the town where his wife's sister lived, so they could help her with the two boys. They moved into his father-in-law's house, which was dilapidated. They borrowed to make repairs using his mother-in-law's credit cards, because she had better credit standing. Because he is making payments on those debts, he has been unable to address his own debts. ⁽¹⁸⁾ His car blew its engine so his sister-in-law bought him and his wife a new car for $22,000, for which they pay her $200 per month. ⁽¹⁹⁾ Applicant submitted a statement listing his creditors, the current total debt ($62,560.15), and the monthly payments ($1,187.00). ⁽²⁰⁾

Personal Conduct

Applicant falsified material facts on a security clearance application, dated March 14, 2004.

In response to the following, Question 38. Your financial delinquencies - 180 days In the last 7 years, have you been over 180 days delinquent on any debt(s)?, he answered "credit cards" in two columns, and put what appears to be the total for those cards. He did not itemize that he had five delinquent accounts: 1.a., 1.c., 1.d., 1.e., and 1.g., above.

In response to the following, Question 39. Your financial delinquencies - 90 days Are you currently over 90 days delinquent on any debt(s)?, he answered "No" knowing that he had seven delinquent accounts: 1.a., 1.b., 1.c., 1.d., 1.e., 1.f., and 1.g., above.

Applicant did not list any debts in responding to question 39 as he believed they would be covered under question 38. ⁽²¹⁾ He listed the general category of credit cards on question 38, and listed totals that were about 80% of the amounts he owed. ⁽²²⁾

POLICIES

"No one has a 'right' to a security clearance." ⁽²³⁾ 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." ⁽²⁴⁾ 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." ⁽²⁵⁾ 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." ⁽²⁶⁾

An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ⁽²⁷⁾

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: nature and seriousness of the conduct and surrounding circumstances; frequency and recency of the conduct; age of the applicant; motivation of the applicant, and the extent to which the conduct was negligent, wilful, voluntary, or undertaken with knowledge of the consequences involved; absence or presence of rehabilitation; and probability that the circumstances or conduct will continue or recur in the future. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. ⁽²⁸⁾ 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

Financial Considerations

The government established its case under Guideline F. Financial Considerations Disqualifying Condition (FC DC) E2.A6.1.2.1. arises where there is (A history of not meeting financial obligations.) Similarly, FC DC E2.A6.1.2.3. applies where the information shows an (Inability or unwillingness to satisfy debts.) The available information demonstrates Applicant has a history of not meeting his financial obligations. He has been delinquent in payments on several accounts for four to six years.

Various conditions can mitigate the trustworthiness concerns arising from financial difficulties. The Directive sets out Financial Considerations Mitigating Condition (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). Applicant's and his wife's mall kiosk business failed. His wife lost her job for medical reasons. Their brother-in-law died, and they decided to move to his sister-in-law's town to help care for the two children. These are unforeseen events and the mitigating condition applies.

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 is under control) does not apply. While there is evidence of seeking financial counseling, the monthly payment amount was too high so no payments were ever made. While there is evidence that Applicant is paying the debts on his mother-in-law's credit cards, he is paying only interest on most other debts. While the record does not contain all of Applicant's financial statistics, it appears that his debts might exceed his ability to pay off those debts within a reasonable time.

FC MC E2.A6.1.3.6. (The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve bad debts) is questionable. Notwithstanding his past history, Applicant has made some effort at payment and has not incurred any additional debt except for contingencies (i.e., new car because his old one blew the engine). He is slowly but deliberately resolving his indebtedness. I conclude Guideline F for Applicant.

Personal Conduct

The government did not establish its case under Guideline E. Personal Conduct Disqualifying Condition (PC DC) E2.A5.1.2.2. (The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities) is the standard. The operative word is "deliberate." Applicant listed his debts generically by listing "credit cards" then putting a combined total. He made an effort to answer the question and it is not indicative of an attempt to avoid answering the questions. His belief that a 90-day delinquency would be covered by a 180-day delinquent debt is reasonable. I conclude Guideline E for Applicant.

Whole Person Analysis

"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." ⁽²⁹⁾

"Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination." ⁽³⁰⁾

In evaluating Applicant's case, in addition to the disqualifying and mitigating conditions, I also considered the "whole person" concept in evaluating Applicant's risk and vulnerability in protecting our national interests. ⁽³¹⁾ I considered his age (32), his education, his employment, and what might be causative of his financial circumstances. Applicant has had a run of bad luck. While the wisdom of his financial decisions can be questioned, his decisions were made in good faith based upon what he and his wife felt was appropriate under the circumstances. And events were certainly beyond his control. What is problematic is the fact that it appears his obligations exceed his ability to pay. I do not have persistent doubts about his ability to protect classified information and to conduct himself with discretion in carrying out duties for which a security clearance is required. He learned this in the Marine Corps. It is for these reasons, using the whole person concept, that I conclude it is clearly consistent with the national interest to grant or continue Applicant's security clearance.

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

Subparagraph 1.b: For Applicant

Subparagraph 1.c: For Applicant

Subparagraph 1.d: For Applicant

Subparagraph 1.e: For Applicant

Subparagraph 1.f: For Applicant

Subparagraph 1.g: For Applicant

Paragraph 2. Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant

Subparagraph 2.b: For Applicant

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.