DATE: January 31, 2007

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

Applicant for ADP I/II/III Position

DECISION OF ADMINISTRATIVE JUDGE

MARK W. HARVEY

APPEARANCES

FOR GOVERNMENT

Ray T. Blank, Jr., Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Forty-two-year-old Applicant had seven alleged debts listed in the statement of reasons (SOR). Her debt problems resulted from several leaves without pay that she used to care for her children, mother and father. She disputed one SOR debt for $72. She settled and paid the only SOR debt within the 3-year South Carolina statute of limitations for debts. She currently has no legally enforceable, delinquent debts. She is receiving financial counseling. For the last three years, except for a cell phone debt which she recently paid, she has been financially responsible. She has mitigated concerns about financial considerations. Eligibility for an ADP I/II/III position is granted.

PROCEDURAL RULING

The Statement of Reasons (SOR) does not cite or refer to Department of Defense (DoD) Regulation 5200.2-R, Personnel Security Program (Regulation), dated January 1987, as amended, but it does cite DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified. A memorandum from the Deputy Under Secretary of Defense (Counterintelligence and Security) to Director, Defense Office of Hearings and Appeals (DOHA), dated November 19, 2004 states DOHA shall utilize provisions of the Directive to resolve contractor cases involving trustworthiness determinations. In this case, the pertinent disqualifying and mitigating conditions in the Regulation and the Directive are the same. The Regulation, paragraph C8.2.1 provides that the procedural rules of the Directive apply for contractor personnel.

STATEMENT OF THE CASE

On October 12, 2004, Applicant applied for a public trust position and submitted a Questionnaire for Public Trust Positions (Standard Form (SF) 85P). ⁽¹⁾ On August 30, 2006, the Defense Office of Hearings and Appeals (DOHA) issued a SOR to her, pursuant to the Directive and the Regulation. ⁽²⁾ The SOR alleges security concerns under Guideline F (Financial Considerations). The SOR detailed reasons why DOHA recommends that Applicant's case be submitted to an administrative judge for a determination that Applicant is not eligible for occupying an ADP I/II/III position.

In a notarized answer, received at DOHA on October 10, 2006, Applicant responded to the SOR allegations, and elected to have her case decided at a hearing. ⁽³⁾ On October 31, 2006, the case was assigned to me. The hearing was held on November 29, 2006. At her hearing I approved Applicant's request that I hold the record open so she could submit additional documentary evidence (R. 50, 64). DOHA received the transcript of the hearing (R.)on December 14, 2006, and I received it on December 15, 2006. Department Counsel had no objection to the evidence Applicant provided, and I admitted her additional evidence (Ex. K) on January 9, 2007.

FINDINGS OF FACT

As to the factual allegations under Guideline F, Applicant admitted that she was responsible for the seven debts listed on the SOR. ⁽⁴⁾ Her admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence of record, and upon due consideration of the same, I make the following additional findings of fact:

Applicant is 42 years old. ⁽⁵⁾ For the last ten years (except for the period November 2003 to October 2004 when she was unemployed), she has been employed by a United States government contractor, and she is involved with processing sensitive medical records. ⁽⁶⁾ She has no prior military service. ⁽⁷⁾ She has a high school diploma and a diploma from a beauty school as well as one year of college. ⁽⁸⁾ Applicant has never been married, and has two children (born in 1991 and 2002). ⁽⁹⁾

In 1999, Applicant borrowed approximately $2,000 to pay for her sister's wedding based on family promises to assist her in repaying the loan (R. 17). She made a few payments, however she and her family were unable to repay the loan. Her mother became extremely ill in 2001. In December 2001, her oldest daughter was hospitalized for back surgery, and Applicant needed to take six weeks of unpaid leave from her employment (R. 17-18, 24). While on this unpaid leave, she collected unemployment, but her income was reduced by about $450 (R. 25). In 2002, she took two weeks of unpaid leave because she had to care for her father who had cancer (R. 26, 28). Applicant left work in October 2003, and remained unemployed until her mother passed away on September 26, 2004 (R. 18, 28). Her only income while unemployed was unemployment compensation (R. 28). When she returned to work, she received a different position. Her pay at her current position is $7.36 per hour, whereas in 2004 she was receiving almost $10 per hour (R. 26). In June of 2006, her four year old daughter was hospitalized for her tonsils and adenoids, and Applicant again took unpaid leave from work (R. 18, 23). She had to move out of her residence eight months ago because a relative was selling it. Her move threw her finances into turmoil (R. 18). For the last eight months she and her two daughters have been living with her father in her grandmother's house (R. 22).

A personal financial statement (PFS) prepared in 2005 ⁽¹⁰⁾ indicated her gross salary is $1,176 per month, and her deductions are $376 per month. She listed monthly household expenses as follows: rent ($0), groceries ($240), clothing ($50), utilities ($350), car expenses ($75), and insurance ($70). She did not list any debt payments or other liabilities. After deducting all expenses, she had a positive cash flow of $15 per month. After completing her PFS, she purchased a 2003 Dodge Caravan. Now she has a car payment of $299 per month, which causes her to have a negative cash flow (R. 41). When necessary, her father provides additional money to her (R. 42).

Applicant plans to start working part time as a cosmetologist to gain additional income. She had a license for cosmetology services, but her license lapsed two years ago (R. 44). She will complete her remaining class for her cosmetologist license in early December 2006 (R. 44). She expects to receive her license around February 1, 2007, and begin working in a shop shortly thereafter (R. 45). She promised to make payments to resolve her delinquent debts (R. 43). She contacted the creditors by telephone and informed them she wanted to make payments, but she has not sent them any correspondence or made any written promises (R. 47). The following table provides the amount of each SOR debt and its current status.

On November 14, 2006, she had her first appointment with a credit counselor and learned about budgeting, statutes of limitations for her debts, and settling debts (R. 43, 47). She currently has two credit cards, and each has a balance of approximately $200 (R. 51). She is making car payments on two cars, and both accounts are current (R. 51).

A witness, who has known Applicant for twenty years verified Applicant's description of her family's medical problems, the death of her mother, and her care for her mother and father (R. 55-58). He has provided financial assistance to Applicant (R. 56). He believes she is responsible, truthful, reliable, and trusts that she will fulfil her promise to work with her creditors to resolve her delinquent debts (R. 58).

POLICIES

In the evaluation of an Applicant's security suitability for a public trust position, an administrative judge must consider Appendix 8 of the Regulation, which sets forth brief introductory explanations for each guideline, and the adjudicative guidelines, which are divided into Disqualifying Conditions (DC) and Mitigating Conditions (MC).

These adjudicative guidelines are not inflexible ironclad rules of law. Instead, recognizing the complexities of human behavior, an administrative judge should apply these guidelines in conjunction with the factors listed in the adjudicative process provision at Appendix 8 of the Regulation. An administrative judge's overarching adjudicative goal is a fair, impartial and common sense decision.

To be eligible for a public trust position, an applicant must meet the security guidelines contained in the Regulation. "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." Regulation ¶ C6.1.1.1.

"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." Regulation, Appendix 8. Because the entire process is a conscientious scrutiny of a number of variables known as the "whole person concept," an administrative judge should consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a meaningful decision. Specifically, an administrative judge should consider the nine adjudicative process factors listed in the Regulation, Appendix 8, at 132: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Conditions that could raise a security concern and may be disqualifying, as well as those which could mitigate security concerns, pertaining to this adjudicative guideline are set forth and discussed in the Conclusions section below.

Since the protection of sensitive information is the paramount consideration, the final decision in each case is arrived at by applying the standard that eligibility for a public trust position is "clearly consistent with the interests of national security." In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

In the decision-making process, facts must be established by "substantial evidence. ⁽¹⁷⁾ The government initially has the burden of producing evidence to establish a case which demonstrates, in accordance with Regulation, Appendix 8, that it is not clearly consistent with national security to approve eligibility for a public trust position. Directive ¶ E3.1.14. If the government meets its initial burden, the Applicant then has the burden of persuasion, that is to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the doubts raised by the government's case. Directive ¶ E3.1.15. 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 (App. Bd. Dec. 19, 2002). "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive ¶ E2.2.2. These same burdens of proof apply to trustworthiness determinations for ADP positions.

A person who seeks eligibility for a public trust position enters into a fiduciary relationship with the government predicated upon trust and confidence. It is a relationship that transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship the government must be able to repose a high degree of trust and confidence in those individuals to whom it grants eligibility for a public trust position. Decisions include, by necessity, consideration of the possible risk an Applicant may deliberately or inadvertently fail to protect or safeguard sensitive information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified or sensitive information. The scope of an administrative judge's decision is limited. Applicant's allegiance, loyalty, and patriotism are not at issue in these proceedings.

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions, including those described briefly above, I conclude the following with respect to the allegations set forth in the SOR:

Guideline F (Financial Considerations)

The Government has met its initial burden under Guideline F. Applicant's failure to pay her debts is of concern, especially in light of her desire to have access to sensitive government information. Appendix 8 of the Regulation clearly expresses the government's concern regarding financial considerations, stating, "an individual who is financially overextended is at risk of having to engage in illegal acts to generate funds." A person who fails or refuses to pay long-standing debts or is financially irresponsible may also be irresponsible or careless in his or her duty to protect sensitive information.

Applicant's actions in failing to satisfy her outstanding financial obligations give rise to Financial Considerations Disqualifying Condition (FC DC) 1, "a history of not meeting financial obligations," and FC DC 3, "inability or unwillingness to satisfy debts." The seven debts in SOR ¶¶ 1.a to 1.g became delinquent between 1999 and 2004. Six of the seven SOR debts have been delinquent for three or more years. Applicant established that the debt in SOR ¶ 1.g was settled and paid. It was delinquent for a thirty months. She has provided some evidence to dispute her responsibility for the debt in SOR ¶ 1.b, and she will ask Medicare to pay the two SOR debts in ¶¶ 1.c and 1.f. She currently has no legally enforceable, delinquent debts because the 3-year South Carolina statute of limitations is applicable to the debts in SOR ¶¶ 1.a to 1.f.

FC DCs 1 and 3 apply to her failure to meet her financial obligations, and her admission that she was unable to pay the debts in SOR ¶¶ 1.a to 1.g, which then became delinquent and remained delinquent for substantial periods of time. The government produced substantial evidence of these two disqualifying conditions. The burden shifted to Applicant to produce evidence and prove a mitigating condition. The burden of disproving a mitigating condition never shifts to the government. ⁽¹⁸⁾

I considered Financial Considerations Mitigating Condition (FC MC) 1, "the behavior was not recent;" FC MC 2, "it was an isolated incident;" FC MC 3, "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."

The Regulation does not define "recent," and there is no "bright-line" definition of what constitutes "recent" conduct. Based on my evaluation of the record evidence as a whole, ⁽¹⁹⁾ I conclude FC Cs 1 and 2 do not apply because Applicant had multiple delinquent SOR debts. Payment of the debt in SOR ¶ 1.g on December 29, 2006, is simply too recent to merit application of FC MC 1.

FC MC 3 partially applies to all of her SOR debts because the debts became delinquent several years ago, and these delinquent debts were the result of her unemployment, and underemployment as well as her support to her mother, father, and children when they were ill. This change in family circumstances is a good example of the unforseen problems that trigger application of FC MC 3, causing financial problems that may be "largely beyond the person's control." I conclude that Applicant's statement about how her debts became delinquent is credible and sufficient to provide some credit under FC MC 3 in regard to her debts. Applicant, however, does not receive full credit for FC MC 3 because she waited until December 29, 2006, to pay the debt in SOR ¶ 1.g. There is a paucity of evidence showing how she endeavored to pay or resolve her SOR debts for several years. However, her recent resolution of the remaining SOR debt within the statute of limitations, and keeping her non-SOR debt payments current warrants some credit, which will be applied in the whole person analysis, infra.

She is receiving financial counseling, and partial credit under FC MC 4 is warranted because there are clear indications (since December 29, 2006) that the problem is resolved and under control. She does not receive full credit under FC MC 4 because her track record of financial responsibility is too brief. In regard to application of the statute of limitations, FC MC 6 does not apply because there is insufficient information to establish that Applicant showed good faith in the resolution of her debts. ⁽²⁰⁾ It should also be noted in the whole person analysis, infra, that the 3-year South Carolina statute of limitations is relevant to the seven debts in SOR ¶¶ 1.a to 1.f. See S.C. Code. Ann. § 15-3-530 (listing the statute of limitations for various debts). ⁽²¹⁾ In Carolina Marine Handling, Inc. v. Lasch, 363 S.C. 169, 175-76, 609 S.E.2d 548, 552 (S.C. Ct. App. 2005), the court succinctly explained the societal value of application of the statute of limitations:

Statutes of limitations embody important public policy considerations in that they stimulate activity, punish negligence, and promote repose by giving security and stability to human affairs. Moates v. Bobb, 322 S.C. 172, 176, 470 S.E.2d 402, 404 (Ct. App. 1996). The cornerstone policy consideration underlying statutes of limitations is the laudable goal of law to promote and achieve finality in litigation. See Webb v. Greenwood County, 229 S.C. 267, 276, 92 S.E.2d 688, 691 (1956); City of Myrtle Beach v. Lewis-Davis, 360 S.C. 225, 231, 599 S.E.2d 462, 464 (Ct. App. 2004). Significantly, "statutes of limitations provide potential defendants with certainty that after a set period of time, they will not be hailed [sic] into court to defend time-barred claims." In re Elkay Indus., Inc., 167 B.R. 404, 408 (D.S.C. 1994). "Moreover, limitations periods discourage plaintiffs from sitting on their rights." Id. at 408-09. Statutes of limitations are, indeed, fundamental to our judicial system.

The enforcement of the debts in SOR ¶¶ 1.a to 1.f ended approximately seven months before her hearing due to the statute of limitations. Her potential vulnerability to improper financial inducements also ended because she was no longer "financially overextended" when she settled and paid the debt in SOR ¶ 1.g. Of course, her past conduct in failing to resolve the financial jeopardy over the last several years is also relevant to security concerns.

"Whole Person" Analysis

In addition to the enumerated disqualifying and mitigating conditions, I have considered the general adjudicative guidelines related to the whole person concept under the Regulation, Appendix 8, at 132. As noted above, Applicant's lengthy history of failing to meet her financial obligations and inability or unwillingness to satisfy her debts raise serious trustworthiness concerns. She is currently 42 years old. She was sufficiently mature to be fully responsible for her conduct. Her actions in generating or failing to resolve her debts in a timely fashion were knowledgeable and voluntary. Her debt problems resulted from voluntary decisions to purchase items. However, her inability to repay her debts resulted from her unemployment, underemployment, and her care for her mother, father and her daughters. There is some evidence of rehabilitation, positive behavior changes, and improved circumstances as indicated by self-discipline and the complete absence of new delinquent, unpaid debt over the last three years. Moreover, potential increased income though her cosmetology employment shows signs of financial improvement in the future. The potential for pressure, coercion, exploitation, or duress is low. Applicant is current on her recent debts, as her two car loans and two credit cards are current. Greater awareness of financial responsibilities will result in a continuously improving trend of financial circumstances. Moreover, stability in her employment, increases in her income, and reduction in her debt load show improved self-discipline, and greater consciousness of her financial responsibilities. In sum, the likelihood of recurrent debt problems is low.

In ISCR Case No. 04-07360 (App. Bd. Sep. 26, 2006), the Board noted that two SOR debts were paid through judgment and garnishment, one SOR debt was paid through settlement, and one SOR debt was never paid. Indeed for one SOR debt, the applicant did not even contact the creditor about payment. Nevertheless, the applicant showed that he reduced his overall debt by 95% and the Board affirmed the decision to grant that applicant a clearance.

Applicant's financial case is similar to ISCR Case No. 04-07360. One SOR debt was paid on December 29, 2006. One small SOR debt is disputed. Two SOR debts may be paid by Medicare. Applicant's currently unpaid SOR debts are barred by South Carolina's 3-year statute of limitations. As such, the concern about current financial pressure that may result in illegal activity is significantly lower because as a matter of law, she no longer has any delinquent debts. After weighing the disqualifying and mitigating conditions, and all facts and circumstances, in the context of the whole person, I conclude she has mitigated the trustworthiness concerns pertaining to financial considerations.

Substantial evidence supports Applicant's trustworthiness eligibility and suitability. I take this position based on the law, my "careful consideration of the whole person factors" ⁽²²⁾ and supporting evidence, as well as my application of the pertinent factors under the Adjudicative Process, and my interpretation of my responsibilities. For the reasons stated, I conclude Applicant is eligible for a public trust position.

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, Guideline F: FOR APPLICANT

Subparagraphs 1.a to 1g: For Applicant

DECISION

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue Applicant's eligibility for a public trust position. Eligibility for an ADP I/II/III position is granted.

Mark W. Harvey

Administrative Judge

1. Exhibit (Ex.) 1 (Questionnaire for Public Trust Positions, Standard Form (SF) 85P) is dated October 12, 2004, on the last page.

2. Ex. 5 (Statement of Reasons (SOR), dated August 30, 2006). The SOR is the source for all factual assertions in the remainder of this paragraph.

3. Ex. 6 (Applicant's response to SOR, notarized and sworn on September 15, 2006).

4. The source for all factual assertions in this paragraph is Ex. 6, supra n. 3.

5. Ex. 1, supra n. 1, at 1 (date of birth).

6. Id., question 11 at 3 (employment); R. 18.

7. Id., question 16, at 6 (military service).

8. Id., question 10, at 2 (education); R. 6.

9. Id., questions 14 and 15, at 5 (marital status and relatives); R. 22.

10. Ex. J at 1-2 (statement to investigator from Office of Personnel Management). This paragraph is derived from Applicant's PFS and R. 39-41.

11. Applicant was aware of this debt, and contacted the creditor about a month before her hearing and promised to begin payments again after January 1, 2007 (R. 29-30).

12. This is a medical debt that Medicare asked Applicant to send to them for payment, however, she had not heard whether Medicare had paid it (R. 30-32). Last activity on account was in January 2000 (Ex. 3 at 6).

13. This is a medical bill for Applicant's children (R. 33-34). She thought that this bill may be the responsibility of Medicare or of her own medical insurance, but had not attempted to resolve responsibility for payment (R. 34). Last activity on account was in February 2002 (Ex. 3 at 6).

14. These two signature loans have a last activity on account date of September 2002 (Ex. 3 at 2; R. 46). In November 2006, she contacted the creditor and indicated she would start making payments in January 2007 (R. 34-35).

15. This medical bill was for her daughter's broken arm and it has a last activity on account date of March 2002 (R. 35-36; Ex. 3 at 5). She had Medicaid coverage, but has not contacted the creditor (R. 37).

16. This is a cell phone bill for Applicant's sister and uncle, who promised to pay for it (R. 37). Her uncle passed away without paying his bill and her sister failed to pay as promised (R. 38).

17. "Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record." ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). "This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [a Judge's] finding from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966). "Substantial evidence" is "more than a scintilla but less than a preponderance." See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4^th Cir. 1994).

18. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).

19. See ISCR Case No. 03- 02374 at 4 (App. Bd. Jan. 26, 2006) (citing ISCR Case No. 02-22173 at 4 (App. Bd. May 26, 2004)). When making a recency analysis for FC MC 1, all debts are considered as a whole.

20. The Board has previously explained what constitutes a "good faith" effort to repay overdue creditors or otherwise resolve debts:

In order to qualify for application of Financial Considerations Mitigating Condition 6, an applicant must present evidence showing either a good-faith effort to repay overdue creditors or some other good-faith action aimed at resolving the applicant's debts. The Directive does not define the term 'good-faith.' However, the Board has indicated that the concept of good-faith 'requires a showing that a person acts in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation.' Accordingly, an applicant must do more than merely show that he or she relied on a legally available option (such as bankruptcy) in order to claim the benefit of Financial Considerations Mitigating Condition 6.

(internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)). In ISCR Case No. 99-9020 at 6 (App. Bd. Dec. 1, 1999), the Appeal Board specifically addressed application of the statute of limitations, stating a "person who decides not to honor his or her debts may be able to avoid paying those debts until they are legally uncollectible because the statute of limitations has run. Reliance on the running of a statute of limitations would be a legally permissible course of action. However, it would not demonstrate a good-faith effort to resolve one's debts that would fall under the meaning of Financial Considerations Mitigating Condition 6." See ISCR Case No. 03-10880 (App. Bd. June 24, 2005); ISCR Case No. 01-09691 (App. Bd. Mar. 27, 2003) (stating an applicant must do more than merely cite the statute of limitations to obtain the full benefit of FC MC 6). See also ISCR Case No. 01-09691 at 3 (App. Bd. Mar. 27, 2003) ("[E]ven if a delinquent debt is legally unenforceable under state law, the federal government is entitled to consider the facts and circumstances surrounding an applicant's conduct in incurring and failing to satisfy the debt in a timely manner."); ISCR Case No. 98-0349 at 2-3 (App. Bd. Feb. 3, 1999) (even though an applicant's delinquent debts were not legally collectible because of the statute of limitations, that fact did not preclude the Administrative Judge from considering the applicant's failure to resolve the delinquent debts before the statute of limitations ran). Cf. ISCR Case No. 01-04425 at 3-4 (App. Bd. May 17, 2002) (adverse Guideline F conclusions possible where applicant chose not to pay her delinquent debts, waited until her creditors ceased trying to collect those delinquent debts, and they were eventually dropped from her credit report.).

21. See ISCR Case No. 04-07360 at 2 (App. Bd. Sept. 26, 2006) (stating that partial credit was available under FCMC 6 for debts being resolved through garnishment).

22. See ISCR Case No. 04-06242 at 2 (App. Bd. June 28, 2006).