DATE: January 29. 2007
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SSN:------------------
Applicant for ADP I/II/III Position
ECISION OF ADMINISTRATIVE JUDGE
CAROL G. RICCIARDELLO
APPEARANCES
FOR GOVERNMENT
Ray T. Blank, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant is a 31 year old married woman with three children, who has worked for a health care contractor for the federal government since 2002. She has delinquent debts over $13,000 dating back to 2000, that she has not made any payments on. She wrote two bad checkS in 2003-2004 that have been mitigated by time. Her other criminal offense was attributed to her drug addicted mother. Applicant mitigated the trustworthiness concerns about her criminal conduct, but not the financial consideration concerns. Eligibility for assignment to an ADP I/II/III position is denied.
STATEMENT OF CASE
The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue an ADP I/II/III position for Applicant. As required by Department of Defense Regulation 5200.2-R (Jan. 1987), as amended (Regulation), and Department of Defense Directive 5220.6 ¶ E3.1.2 (Jan. 2, 1992), as amended (Directive), DOHA issued a Statement of Reasons (SOR) on May 16, 2006, detailing the basis for its decisions--concerns raised under Guideline F (Financial Considerations), and Guideline J (Criminal Conduct) of the Regulation. Applicant answered the SOR in writing on May 23, 2006, and elected to have the case decided on the written record in lieu of a hearing. Department counsel submitted the Government's written case on October 24, 2006. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the disqualifying conditions. Applicant received the FORM on November 2, 2006, and responded in writing dated November 10, 2006. The case was assigned to me on December 1, 2006.
FINDINGS OF FACT
Applicant is 31 years old, married and the mother of three children. She married in June 2001 and was separated on and off from her husband for periods of time, but they have now reconciled and live together. She has worked as a customer service representative for a health care contractor for the federal government since August 2002.
Applicant admits she is responsible for all the debts listed in SOR ¶¶ 1.a through 1.u. These debts were placed in collection or charged off starting in February 2000 through November 2005. In a sworn statement provided on October 19, 2004, Applicant stated she was not receiving child support from her estranged husband, she was living with her mother, she had difficulty maintaining her daily finances, and she had a period of disability from July 2003 to September 2003. (1) She acknowledged she did not have a payment plan set up for any of her debts and was considering filing bankruptcy in early 2005. She was able to pay her child care, car and cable bills in a "timely manner without being more than 120 days delinquent." (2) She acknowledged that "my only other option other than to file for bankruptcy in 2005 is to consolidate my debts and come up with a reasonable payment plan." (3)
On February 4, 2005, Applicant made a sworn statement and again stated she intended on filing for bankruptcy in 2005 and was saving money so she could do so. (4) She also stated that if she did not file for bankruptcy she was going to attempt to make payments on the account listed in SOR ¶ 1.b. That account remains delinquent.
Applicant has not provided any proof that she has made any payment on any of the delinquent accounts that she admits to in the SOR. In her Supplemental Response dated November 10, 2006, she provided a document from a debt consolidation company with her signature dated September 9, 2006. (5) The document is unsigned by the company and purports to be an agreement to pay $192 to the company. It does not list what debts are covered by the agreement, nor has Applicant provided any proof that she has actually made a payment.
Applicant was arrested on or about December 11, 1995 and charged with four counts of theft by deception. She pled guilty and was sentenced to prison for 11 days and ordered to pay fines and costs. Applicant was arrested again in a different township in the same state on December 12, 1995, and charged with theft by deception. She again pled guilty, was sentenced to 12 months of probation and ordered to pay cost. Applicant provided a letter from her mother taking responsibility for these offenses and admitting she had taken Applicant's check book and wrote the unauthorized checks because she was a habitual drug abuser. She convinced her daughter to take responsibility for the offenses because it would be a first offense for her and her mother was likely to receive extended jail time. (6)
Applicant was charged with writing a bad check on about August 27, 2003. She was charged again on January 1, 2004, also for writing a bad check. She admitted she wrote the checks and paid a fine and restitution. (7)
Applicant is now living with her husband and claimed she is able to take the necessary steps to correct her credit problems. She attends college and is attempting to complete a degree in business administration. She stated her problems were due to "indiscretions that happened during my youth," (8) and her "past actions in no way describe the person I am today." (9) Applicant's performance evaluation dated March 23, 2006, shows that she meets and exceeds various performance standards. (10)
POLICIES
The adjudicative guidelines set out in the Regulation are used to make ADP trustworthiness determinations. Department of Defense contractor personnel are afforded the right to the procedures contained in the Directive before any final unfavorable access determination may be made. (11)
An individual may not be assigned to perform sensitive duties unless a competent security authority determines it is clearly consistent with the interests of national security to do so. (12) Positions designated as ADP I or ADP II are classified as sensitive positions. (13) ADP III positions are "nonsensitive positions." (14) However, DOHA has been directed to apply the due process provisions of the Directive for all trustworthiness determinations under ADP I, II, and including ADP III positions by a memorandum from the Deputy Undersecretary of Defense (Counterintelligence and Security) dated November 19, 2004. Thus, even though ADP III positions are nonsensitive, they are treated in the same way and adjudicated under the same guidelines and procedures as ADP I and II cases.
"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." (15) Appendix 8 of the Regulation sets forth adjudicative policy , as well as the disqualifying conditions (DC)and mitigating conditions (MC) under each guideline. Department of Defense contractor personnel are afforded the adjudicative procedures contained in the Directive. (16)
"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." (17) Each eligibility determination must be a fair and impartial commonsense decision based on the relevant and material facts and circumstances, the whole-person concept, along with the factors listed in the Regulation. Specifically these are: the nature, extend, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the individual's age and maturity at the time of the conduct; the voluntariness of participation; the presence or absence of rehabilitation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence. Although the presence or absence of a particular condition or factor for or against clearance is not outcome determinative, the adjudicative guidelines should be followed whenever a case can be measured against this policy guidance.
The sole purpose of a security clearance determination is to decide if it is clearly consistent with the national interest to grant or continue a security clearance for an applicant. (18) The government has the burden of proving controverted facts. (19) The burden of proof is something less than a preponderance of evidence. (20) Once the government has met its burden, the burden shifts to an applicant to present evidence of refutation, extenuation, or mitigation to overcome the case against
him. (21) Additionally, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. (22) These same burdens of proof apply to trustworthiness determinations for ADP positions.
No one has a right to a security clearance (23) and "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." (24) Any reasonable doubt about whether an applicant should be allowed access to sensitive information must be resolved in favor of protecting such sensitive information. (25) The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of an applicant. (26) It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.
Based upon consideration of all the evidence, I find the following adjudicative guidelines most pertinent to the evaluation of the facts in this case:
Financial Considerations-a security concern exists when a person has significant delinquent debts. 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 information. Behaving responsibly or irresponsibly in one aspect of life provides an indication of how a person may behave in other aspects of life.
Criminal Conduct-a security concern exists when a history or pattern of criminal activity creates doubt about a person's judgment, reliability or trustworthiness.
Conditions that could raise a security concern and may be disqualifying, as well as those which would mitigate security concerns, pertaining to the adjudicative guideline are set forth and discussed in the conclusions below.
CONCLUSIONS
I have carefully considered all the facts in evidence and the legal standards.
Based on all the evidence, Financial Considerations Disqualifying Condition (FC DC) 1 (a history of not meeting financial obligations), FC DC 2 (deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, income tax evasion, expense account fraud, filing deceptive loan statements, and other intentional financial breaches of trust), and FC DC 3 (inability or unwillingness to satisfy debts), apply in this case. Applicant has delinquent debts totaling more than $13,000 that are listed in the SOR. She has not made payments on any of them despite being aware they jeopardized her trustworthiness determination. Applicant has not made a genuine attempt to satisfy her debts. Applicant admits to writing two bad checks and pleading guilty to her mother's theft by deception charges. Although she presumably made restitution it does not negate her actions.
I considered all the Financial Considerations Mitigating Conditions (FC MC), and especially considered FC MC 1 (the behavior was not recent), FC MC 2 (it was an isolated incident) FC MC 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)), FC MC 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), and FC MC 6 (the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts). All of Applicant's debts are recent because none of them have been paid. Due to the number of debts they are not isolated. Therefore, FC MC 1 and 2 do not apply. Applicant experienced a period of separation from her husband and had difficulty paying her bills. However, she has been employed since 2002 and has not made any attempt to resolve even the smallest debt of $37. Her statement made in 2004 acknowledged that an option was to come up with a reasonable repayment plan to pay the debts. She did not do this. Eventually she contacted a debt consolidation company, months after receiving the SOR. She did not provide any proof that she has made payments on that plan. Despite her claim that her "indiscretions" were due to her youth, many of her debts became delinquent in 2003, 2004 and 2005, well beyond her youthful years. I have considered that she was a single mother trying to make ends meet. Although those conditions were beyond her control, it is necessary to look at what reasonable efforts she made to make any payments on her debts. Her husband is now back in the home, but nothing was presented to show she has made any payments toward her debts. I find FC MC 3 does not apply. It appears Applicant sought credit counseling through a debt consolidation agency. However, the document she signed was in September of 2006, almost two years after becoming aware of the issues surrounding her trustworthiness determination. Applicant used her credit to receive services and merchandise. She has not paid the legitimate creditors for those things she received. Failing to pay for something one receives raises questions about ones honesty and trustworthiness. FC MC 4 and 5 do not apply because there is no evidence the problem is under control and being resolved, or that she is making any good faith effort to repay her creditors.
Based on all the evidence Criminal Conduct Disqualifying Condition (CC DC) 1 (any conduct, regardless of whether the person was formally charged) and CC DC 2 (a single serious crime or multiple lesser offenses.) apply. Applicant has convictions for theft by deception and charges for writing bad checks.
I have considered all the Criminal Conduct Mitigating Conditions (CC MC) and especially CC MC 1 (the behavior was not recent), CC MC 2 (the crime was an isolated incident), CC MC 3 (the person was pressured or coerced into committing the act and those pressures are not longer present in that persons life), and CC MC 5 (there is clear evidence of successful rehabilitation). With regard to the convictions for theft by deception, I have considered Applicant's explanation and her mother's attestation about the offenses and find CC MC 3 applies. With regard to her offenses of writing bad checks, I find CC MC 1 and 5 apply. It has been almost four years since her last offense and they are mitigated by time and no additional offenses committed.
The Whole Person
In all adjudications, the protection of our national security is the paramount concern. The objective of the security-clearance process is the fair-minded, commonsense assessment of a person's life to make an affirmative determination that the person is eligible for a security clearance. 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 considered all the evidence provided and also considered the "whole person" concept in evaluating Applicant's trustworthiness. I considered the length of time that many of these debts have been delinquent. I considered Applicant's statements over a two year period and her assertions that she was going to do something about her debts, yet did nothing. I considered that some of the debts are under $100, yet she has not satisfied even the smallest debt. I also considered she was a single mother attempting to provide for her family. I considered that her mother pressured her to plead guilty to a charge she did not commit. After considering all of the evidence, I find Applicant has failed to mitigate the trustworthiness concerns raised by the financial considerations, but has mitigated the criminal conduct concerns. Therefore, I am persuaded by the totality of the evidence in this case, that it is not clearly consistent to grant Applicant a favorable trustworthiness determination. Accordingly, Guideline F is decided against Applicant and Guideline J is decided for Applicant.
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 Financial Considerations (Guideline F) AGAINST APPLICANT
Subparagraph 1.a.-1.u. Against Applicant
Paragraph 2 Criminal Conduct (Guideline J) FOR APPLICANT
Subparagraph 2.a. For Applicant
Subparagraph 2.b. For 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 Applicant's eligibility for assignment in an ADP I/II/III position. Eligibility is denied.
Carol. G. Ricciardello
Administrative Judge
1. Item 5 at 2.
2. Id. at 3.
3. Id.
4. Item 6 at 2.
5. Supplemental Response dated November 10, 2006.
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.
11. Regulation ¶ C8.2.1.
12. Regulation ¶ C2.1.2.
13. Regulation ¶¶ C3.1.2.1.1.7 and C3.1.2.1.2.3.
14. Regulation ¶ C3.1.2.2.
15. Regulation ¶C6.1.1.1.
16. Regulation ¶ C8.2.1.
17. Regulation Appendix 8 at 132.
18. ISCR Case No. 96-0277 at 2 (App. Bd. Jul. 11, 1997).
19. ISCR Case No. 97-0016 at 3 (App. Bd. Dec. 31, 1997); Directive, Enclosure 3, ¶ E3.1.14.
20. Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).
21. ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995); Directive, Enclosure 3, ¶ E3.1.15.
22. ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995); Directive, Enclosure 3, ¶ E3.1.15.
23. Egan, 484 U.S. at 531.
24. Id.
25. Id.; Directive, Enclosure 2, ¶ E2.2.2.
26. Executive Order 10865 § 7.