DATE: January 31, 2007
-------------------------
SSN: --------------------
Applicant for Security Clearance
ECISION OF ADMINISTRATIVE JUDGE
MARC E. CURRY
APPEARANCES
FOR GOVERNMENT
Braden M. Murphy, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant's accrual of $37,000 of financial delinquencies between 2000 and 2003, and his failure to be forthcoming about them on a subsequent security clearance application generate security concerns that he failed to mitigate. Clearance is denied.
On February 10, 2006, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) stating it was unable to find it clearly consistent with the national interest to grant or continue a security clearance. (1) The SOR alleged security concerns under Guideline F (financial considerations), and Guideline E (personal conduct). Applicant answered the SOR on February 24, 2006, and elected to have the case decided on the written record.
Department Counsel mailed the government's file of relevant material (FORM) to Applicant on October 20, 2006. He received it on November 3, 2006, and was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. On November 5, 2006, Applicant submitted a two-page response to the FORM. He did not object to any of the submissions in the FORM. The case was assigned to me on December 20, 2006.
FINDINGS OF FACT
Applicant's admissions are incorporated into the findings of fact. In addition, I make the following findings.
Applicant is a 40-year-old married man. He has six children and three stepchildren, ages 11 through 19. He lives with one of his children, and all of his stepchildren, and pays child support for the remaining children.
Since 2001, Applicant has worked for different employers as a security guard. Before working as a security guard, he worked as a police officer from 1994 to 2001. He has a high school education, earning a GED in 1986.
Applicant has eight financial delinquencies in excess of $37,000. They include a dental bill (SOR subparagraph 1.a), a personal loan (SOR subparagraph 1.b), two car notes (SOR subparagraphs 1.c and 1.h), two debts owed to communications companies (SOR subparagraphs 1.d and 1.e), a debt owed to a credit protection company (SOR subparagraph 1.f), and a loan for which he is responsible as a cosigner (SOR subparagraph 1.g). All have been delinquent since 2003. He attributes his financial difficulties to a three-month period of unemployment from April 2001 to July 2001, and to his difficulty in supporting his large family on a police officer's income from 1994 to 2001. (2)
All of the delinquencies remain outstanding in their entirety. In November 2006, seven months after answering the SOR, Applicant retained a credit counselor. He provided no evidence that he has organized a budget or a debt payment plan.
Applicant completed a security clearance application (SF 86) on July 9, 2003. He did not disclose the delinquencies listed in SOR subparagraphs 1.a through 1.d, and 1.f through 1.h, as required, in response to either Question 38 (Your Financial Delinquencies -180 days - In the last 7 years, have you been over 180 days delinquent on any debt(s)?), or Question 39 (Your Financial Delinquencies - 90 days - Are you currently over 90 days delinquent on any debt(s)?").
POLICIES
Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. They are divided into those that may be considered in deciding whether to deny or revoke an individual's eligibility for access to classified information (disqualifying conditions) and those that may be considered in deciding whether to grant an individual's eligibility for access to classified information (mitigating conditions). An administrative judge need not view them as inflexible rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, when applied in conjunction with the factors set forth in the Adjudicative Process provision in Section E2.2., Enclosure 2, of the Directive, are intended to assist the administrative judge in reaching fair, common sense decisions.
Because the entire process is a scrutiny of a number of variables known as the "whole person concept," all available, reliable information about the person, past and present, favorable and unfavorable, should be considered in making a meaningful decision. Specifically these are: (1) the nature and seriousness of the conduct and surrounding circumstances; (2) the frequency and recency of the conduct; (3) the age of the applicant; (4) the motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequences; (5) the absence or presence of rehabilitation; and (6) the probability that the circumstances or conduct will continue or recur in the future.
The following adjudicative guidelines are raised:
Guideline F - Financial Considerations: An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.
Guideline E - Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.
Conditions pertaining to these adjudicative guidelines that could raise a security concern and may be disqualifying, as well as those which could mitigate security concerns, are set forth and discussed in the conclusions below.
Since the protection of national security is the paramount consideration, the final decision in each case must be reached by applying the standard that the issuance of the clearance is "clearly consistent with the national interest." (3) In reaching this decision, I have drawn only those conclusions that are reasonable, and based on the evidence contained in the record.
The Government is responsible for presenting evidence to establish facts in the SOR that have been controverted. The applicant is responsible for presenting evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by the Government, and has the ultimate burden of persuasion as to obtaining a favorable security decision.
Decisions under this Directive include, by necessity, consideration of the possible risk an applicant may deliberately or inadvertently fail to protect classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.
Applicant's loyalty is not at issue in these proceedings. Section 7 of Executive Order 10865 specifically provides industrial security clearance decisions shall be "in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned."
CONCLUSIONS
Financial Considerations
Applicant's accrual of $37,000 of delinquent debt over the past eight years, and his failure to begin satisfying them trigger the application of Financial Considerations Disqualifying Condition (FC DC) E2.A6.1.2.1. (A history of not meeting financial obligations), and FC DC E2.A5.1.2.3. (Inability or unwillingness to satisfy debts). His difficulties in managing his finances were exacerbated by a three-month period of unemployment in 2001. 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)) applies.
None of the remaining mitigating conditions apply. Despite working steadily since August 2001, Applicant has not made any payments toward the satisfaction of his delinquencies. Although he has retained a credit counselor, he presented no evidence that he has developed or implemented a payment plan, or that his financial problems are otherwise under control
Personal Conduct
Applicant's omission of his delinquencies from the SOR raises the issue of whether 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) applies. He stated, in his Answer, that he "was confuse[d] by then, because there was laps [sic] of times in between debts and he answer[ed] 'no' believing [he] was correct . . ." (4) This explanation is not credible in light of his earlier acknowledgment that he had been struggling with his finances since 1994. (5) I conclude PC DC E2.A5.1.2.2 applies without mitigation.
Whole Person Concept
Applicant presented no evidence of any factors such as quality job performance or community involvement that could conceivably reflect favorably on his security clearance eligibility. Although he deserves credit for retaining a credit counselor, this step has limited probative value absent a demonstrated track record of financial reform. (6) In addition, his intentional omission of the delinquencies taints his credibility with respect to whether he will restore his credit, as promised in the Response to the FORM. Consequently, upon evaluating his personal conduct and continuing financial delinquencies in the context of the whole person concept, particularly, the recency of the conduct, (7) the absence of rehabilitation, (8) the potential for coercion, (9) and the likelihood of recurrence, (10) I conclude he has not mitigated the security concerns.
FORMAL FINDINGS
Formal findings 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.f: Against Applicant
Subparagraph 1.g: Against Applicant
Subparagraph 1.h: Against Applicant
Paragraph 2 - Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against 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.
Marc E. Curry
Administrative Judge
1. This action was taken under Executive Order 10865, dated February 20, 1960, as amended, and DoD Directive 5220.6, dated January 2,1992, as amended and modified (Directive).
2. Item 5, Affidavit, executed December 7, 2004, at 7; Item 3, Answer to SOR, dated November 5, 2006, at 2.
3. See generally, Directive, Sec. 2.3, Sec. 2.5.3, Sec. 3.2, and Sec. 4.2.
4. Item 3, Answer to SOR, date November 5, 2006, at 3.
5. Item 5, Affidavit, dated December 7, 2004, at 7.
6. ISCR Case No. 99-0012 (App. Bd. December 1, 1999).
7. Directive ¶E2.2.1.3.
8. Directive ¶E2.2.1.6.
9. Directive ¶E2.2.1.8.
10. Directive ¶E2.2.1.9.