DATE: November 8, 2006
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SSN: ---------------------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
DARLENE LOKEY ANDERSON
APPEARANCES
FOR GOVERNMENT
Nichole L. Noel, Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant's loss of employment and bad business investment in 1997-1998, have contributed to his financial indebtedness. However, he remains excessively indebted. He has not yet begun to address his financial indebtedness. No financial rehabilitation has been shown. Clearance is denied.
STATEMENT OF THE CASE
On January 31, 2006, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, (as amended) issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.
The Applicant responded to the SOR in writing on February 21, 2006, in which he elected to have the case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM), consisting of ten Government documents to the Applicant on July 7, 2006. The Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant received the FORM on July 12, 2006. The Applicant submitted no reply to the FORM.
The case was transferred to the undersigned for resolution on October 3, 2006.
The following Findings of Fact are based on the Applicant's Answer to the SOR, and the Government's ten exhibits in the FORM .
The Applicant is 61 years old. He is employed by a defense contractor as a Material Planner Senior and is seeking to obtain his security clearance in connection with his employment.
The Government opposes the Applicant's request for a security clearance, on the basis of allegations set forth in the Statement of Reasons (SOR). The following findings of fact are entered as to each paragraph and guideline in the SOR:
Paragraph 1 (Guideline F - Financial Considerations) The Government alleges that the Applicant is ineligible for clearance because he is financially overextended and at risk to engage in illegal acts to generate funds.
The Applicant admits five and denies eight of the thirteen delinquent debts set forth in the SOR. (See Applicant's Answer to the FORM). The Government's evidence, namely the Applicant's credit reports shows that he is indebted to each of the thirteen creditors listed in the SOR, and that the total sum is approximately $47,200.00. (See Government Exhibits 9 and 10). The Applicant explained that in 1997 he lost his job and then later made a $30,000 business investment that he was unable to recoup. (See Government Exhibit 7). His wife suffers from several medical problems and is on disability, and his mother has alzheimers and is in a nursing home. The Applicant was not in a position to pay his bills and they became delinquent. Since February 2005, when the Applicant met with the investigator from the Defense Security Service, the Applicant learned that the fourteen delinquent accounts appeared on his credit bureau reports. The Applicant has not submitted documentation showing that he has contacted any of the creditors to research, establish payment plans or dispute any of these accounts. The Applicant indicates that he does plans to pay these debts sometime in the future.
Enclosure 2 of the Directive sets forth adjudication policies divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying Factors and Mitigating Factors are found to be applicable in this case:
Conditions that could raise a security concern:
1. A history of not meeting financial obligations;
3. Inability or unwillingness to satisfy debts.
Conditions that could mitigate security concerns include:
None.
In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors:
a. The nature and seriousness of the conduct and surrounding circumstances
b. The circumstances surrounding the conduct, to include knowledgeable participation
c. The frequency and recency of the conduct
d. The individual's age and maturity at the time of the conduct
e. The voluntariness of participation
f. The presence or absence of rehabilitation and other pertinent behavior changes
g. The motivation for the conduct
h. The potential for pressure, coercion, exploitation or duress
i. The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.
The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination." The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."
CONCLUSIONS
In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours per day, seven days per week. The Government is therefore appropriately concerned when available information indicates that an Applicant for clearance may be involved in instances of financial irresponsibility which demonstrates poor judgment or unreliability.
It is the Government's responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant's conduct and the holding of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation which is sufficient to overcome or outweigh the Government's case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him a security clearance.
In this case the Government has met its initial burden of proving that the Applicant has been financially irresponsible (Guideline F). This evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant. Because of the scope and nature of the Applicant's conduct, I conclude there is a nexus or connection with his security clearance eligibility.
Considering all of the evidence, the Applicant has not introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case. Admittedly, the Applicant's loss of employment and a business investment that went bad caused many of his financial problems. However, many years have passed and the Applicant remains indebted to each of the fourteen separate creditors in the amount of approximately $47,200.00. There is no evidence to show that the Applicant has made any attempt to set up payment plans or pay his outstanding debts. Without some evidence showing that these debts were addressed in some fashion, there is no choice but to find that these debts remain owing.
Upon review of his financial statement, it appears that the Applicant earns enough money to pay these debts, either by way of monthly payments or in full. (See Government Exhibit 8). However, there is no evidence of financial rehabilitation.
Under Guideline F (Financial Considerations), Disqualifying Conditions (1) A history of not meeting financial obligations and, (3) Inability or unwillingness to satisfy debts apply. None of the mitigating conditions (MC) apply. His financial problems remain current, (MC)1 and; they are not isolated (MC) 2. Accordingly, I find against the Applicant under Guideline F (Financial Considerations).
On balance, it is concluded that the Applicant has failed to overcome the Government's case opposing his request for a security clearance. Accordingly, the evidence supports a finding against the Applicant as to the factual and conclusionary allegations expressed in Paragraph 1 of the Government's Statement of Reasons.
Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: Against the Applicant.
Subpara. 1.a.: Against the Applicant.
Subpara. 1.b.: Against the Applicant.
Subpara. 1.c.: Against the Applicant.
Subpara. 1.d.: Against the Applicant.
Subpara. 1.e.: Against the Applicant.
Subpara. 1.f.: Against the Applicant.
Subpara. 1.g.: Against the Applicant.
Subpara. 1.h.: Against the Applicant.
Subpara. 1.i.: Against the Applicant.
Subpara. 1.j.: Against the Applicant.
Subpara. 1.k.: Against the Applicant.
Subpara. 1.ld.: Against the Applicant.
Subpara. 1.m.: Against the 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 the Applicant.
Darlene Lokey Anderson
Administrative Judge