RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 January 2008
	DOCKET NUMBER:  AR20070011882 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr

Chairperson

Mr. John T. Meixell

Member

Mr. Rowland C. Heflin

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

THE COUNSEL'S REQEUST, STATEMENT AND EVIDENCE:

1.  The counsel requests, in effect, that the applicant's security clearance suspension be expunged from his Officer Record Brief and military records. 

2.  The counsel states, in effect, that the U. S. Army Personnel Security Appeals Board (PSAB) abused its discretion when it denied the applicant's request for reinstatement of his suspended security clearance. 

3.  The counsel provides the following documents in support of the applicant's request:

     a.  a letter addressed to the applicant from the US Army Central Personnel Security Clearance Facility, dated 27 December 1995, subject: Intent to Revoke Security Clearance;

     b.  a second endorsement authored by the applicant addressed through his chain of command to the US Army Central Personnel Security Facility, undated, subject:  Intent to Revoke Security Clearance;

     c.  a memorandum from the Deputy Chief of Staff, Operations for the US Army Special Operations Command, undated, subject:  Request for Active Duty for Special Work (ADSW), 179 days, for DCSOPS Reserve Components War Plans Special Project Officer;

     d.  a memorandum from the President of the U. S. Army PSAB, dated 29 July 1997, subject:  Appeal of Security Clearance Revocation;

     e.  a self-authored memorandum to the Commander of the US Army Reserve Personnel Command (ARPERCEN) in St. Louis, Missouri, dated 17 October 2001, subject:  Reinstatement of Top Secret Security Clearance;

     f.  a memorandum from the applicant to the US Army Central Personnel Security Clearance Facility, undated, subject:  Appeal to Personnel Security Appeal Board;

     g.  a memorandum from the US Army Central Personnel Security Clearance Facility, dated 17 June 2004, subject:  Reconsideration of Access to Sensitive Compartmented Information (CSI) and Security Clearance Determination;

     h.  a memorandum from the applicant to the Executive Secretary of the U. S. Army PSAB, dated 24 August 2004, subject:  Appeal to Personnel Security Appeal Board;

     i.  a memorandum to the applicant from the Executive Secretary of the U. S. Army PSAB, dated 7 October 2004, subject:  Appeal of Security Clearance Denial;

     j.  a memorandum from the applicant to the Assistant Secretary of Defense for Intelligence Oversight, dated 28 July 2005, subject:  Personnel Security Adjudication;

     k.  a letter from the Assistant to the Secretary of Defense, dated 18 August 2005; subject:  Lack of Jurisdiction of Appeal;

     l.  a memorandum from U. S. Army Human Resources Command-St. Louis, dated 24 March 1999; subject:  Promotion as a Reserve Commissioned Officer of the Army; and

     m.  a letter to the President of the United States, dated 9 October 1997, written by the applicant requesting personal assistance from the President in regards to his denied security clearance appeal. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was commissioned as a second lieutenant in the U. S. Army Reserve (USAR) on 24 July 1978.  His source of commissioning was from the Reserve Officer Training Program.  He entered active duty as a USAR commissioned officer on 3 February 1979.  He served continuously until he was released from active duty on 29 June 1990.  The narrative reason for his separation as stated on his DD Form 214 (Certificate of Release or Discharge from Active Duty) was for failure for selection to permanent promotion.  He was twice passed over for selection for promotion to major and received his letter of release from active duty on 9 January 1990.  His characterization of service was honorable and the DD Form 214 he was issued on 29 June 1990 shows he served on active duty for 11 years, 4 months, and 27 days.  His rank upon separation was captain and his military occupation specialty (MOS) was 11A (Infantry).
2.  On 22 August 1990, the applicant was ordered to active duty and served for 7 months and 3 days.  He was released from active duty on 3 July 1991 and issued a DD Form 214, which shows his characterization of service was honorable.  This same DD Form 214 shows that the applicant was ordered to active duty from the USAR in support of Operation Desert Storm Shield/Desert Storm.

3.  On 4 November 1991, the applicant entered a second period of active duty on active duty special work (ADSW) orders that were self-terminating.  He was issued a DD Form 214 on 30 March 1992, which shows his unit of assignment was the U. S. Army Civil Affairs and Psychological Operations Command (USACAPOC) at Fort Bragg, North Carolina.  This same DD Form 214 shows this period of active duty was 4 months and 27 days.  His characterization of service was honorable.

4.  On 16 November 1992, the applicant entered a third period of active duty on ADSW orders that were self-terminating.  He was issued a DD Form 214 on 30 June 1993, which shows his unit of assignment was the USACAPOC.  This same DD Form 214 shows he served for 7 months and 15 days and his characterization of service was honorable.  There was a fourth period of active duty; however, the DD Form 214 of record is not legible.

5.  On 27 December 1995, the applicant received a letter from the U. S. Army Central Clearance Facility (CCF), which notified him that it was their intent to revoke his eligibility for access to Sensitive Compartmented Information (SCI) and his security clearance.  The letter referenced Army Regulation (AR) 380-67 (Department of the Army Personnel Security Program), dated 9 September 1988, and the Director of Central Intelligence Directive 1/14 (Personnel Security Standards and Procedures Governing Eligibility for Access to SCI), dated 22 January 1992.  This letter shows the results of a periodic security clearance investigation that was conducted pursuant to renewing his SCI access and government security clearance.

     a.  This letter of notification shows that the applicant was delinquent or in arrears on 10 different financial accounts which included financial institutions, service companies, utility companies, two department stores, district courts in two states, and lawyer fees.  His estimated total debt was $26,000.00 

     b.  This same letter of notification shows that the applicant made a verbal statement during two interviews to members of the security investigation team that he had been arrested twice by civil authorities because of his inability to pay court ordered alimony and child support.  He spent a total of four days in jail and was charged an estimated $200.00 in associated court costs upon his release from jail after appearing in the 12th District Court.

     c.  In this letter, the applicant was informed that his conduct was considered criminal and that his excessive indebtedness indicated a lack of judgment, reliability and trustworthiness, which is considered incompatible with the standards established for access to SCI and the possession of a government security clearance.

     d.  The applicant was informed that he had the opportunity to explain or refute the adverse information and given 10 days to let his chain of command know his intention.  The same notification letter suspended his SCI access and security clearance.  

6.  On an unknown date, the applicant responded by endorsement to the letter of notification to revoke his SCI access and security clearance from the U. S. Army Central Personnel Security Clearance Facility.  He states, in pertinent part, that he acknowledged he had excessive debts from past difficulties and that it was his intent to favorably resolve the financial debts.  He further states he did not show criminal intent or intent to deceive the U. S. Army.  In this endorsement:

     a.  He states, in effect,  that his indebtedness occurred in his past and that it should not be construed that this type conduct would continue in the future.  He then quoted from AR 380-67, paragraph 6-100, which in effect states that the adjudication process involves the effort to assess the probability of further behavior, which could have an effect adverse to the national security by considering the past, but necessarily anticipating the future. 

     b.  He states, in effect, that his past indebtedness does not bear on his loyalty to his country, his reliability as an officer of the U. S. Army, or on his trustworthiness as an officer.  As supporting evidence to his endorsement, he states that his recent Officer Evaluation Reports (OER) indicated that he is not a security risk and that he has held positions of significant responsibility, which required him to have access to Top Secret information.  Further, he states that his chain of command never questioned his loyalty, reliability or trustworthiness in the performance of his assigned and implied duties. 

     c.  He states, in effect, that his financial difficulties were the result of an unfavorable outcome from his divorce.  He explained that he was in an abusive relationship and that he was the victim of domestic violence.  In 1991, when he divorced the court ordered him to pay $1,400.00 in child support and $1,500.00 in alimony for an estimated total of $2,900.00 monthly.  He states his take home salary at the time was $2,800.00.  Further, he states his wife left the state and took their estimated savings of $66,000.00 and the majority of their personal property.  At this time, he used his credit cards to pay for his monthly living expenses.  

     d.  In 1993, he was unemployed after being released from active duty in 1990 and then after three tours of ADSW as a member of the USAR.  He was financially destitute.

     e.  In April 1994, the civil courts lowered his combined alimony and child support to $1,053.00.  He states his responsibility to comply with the court orders of child support were his first priority, then his personal living expenses and repayment of debts was secondary.  He states that his combined child support payments and alimony costs were an estimated 70 percent of his unemployment compensation when he was eligible to collect unemployment. 

     f.  He states, in effect, that his former wife remained in the family residence and was directed by court order to pay for the utilities.  She did not make payment and the accounts went into arrears.  Since the accounts were in the applicant's name, he is held liable for his former wife's use of the residential property and resulting utility bills.  He states he paid these utility accounts in full in early 1995. 

     g.  He states, in effect, that the specific account at the Army and Air Force Exchange Service (AAFES) was paid in full and that his current revolving credit card through AAFES is up to date.  Further, he states the reason his checking account was overdrawn was based on late payments from the Army Reserve for his various ADSW tours.  He states that his military identification card never reflected a dishonored check stamp that would have prevented him from writing checks at military installations. 

     h.  He states, in effect, that his debt to his former lawyer is valid and that it will continue to remain outstanding pending a court hearing in regards to a malpractice suit that he has filed against his lawyer.

     i.  He states that the two separate court orders issued by two different sovereign states are in effect for the same period when he was not able to pay his child support and alimony to his former wife due to his unemployment.  He acknowledges that he did not comply with the court order and that they are valid debts.  He states, in effect, that the courts for Fayetteville (North Carolina) and the State of Washington Office of Support Enforcement are actually duplicate court orders for the same period of child support and alimony.  He is disputing the debt to the State of Washington Office of Support Enforcement.

     j.  He states his vehicle was repossessed due to his unemployment and inability to make restitution.  Further, he acknowledges his outstanding debts with a major department store and a charge card account from a financial institution are in arrears based on his sporadic employment history for over a three-year period.  He states the debt is still outstanding. 

     k.  He further acknowledged that he was arrested twice and incarcerated for failure to pay alimony and child support as he was unemployed during these periods in 1993.  The judge in each case did not find the applicant in contempt of the court order nor did he find that the applicant had criminal intention.  The judge ordered him released from civilian confinement and ordered the applicant to pay related prosecutor and sheriff department fees.  

     l.  He states, in effect, he did not intend to deceive the interviewing official when he said he would receive an annual financial gift from a family member's estate that he initially hoped to receive so he could pay down his debts.  The estate did not distribute its annual financial gift as intended; therefore, he was not able to make payment on his debts.  He further states, in effect, that the relatively minor, less than $20,000.00, debt is manageable given time and consistent employment.

     m.  He acknowledges that he may have shown poor judgment in the management of his financial resources, but he has paid off debts that were not reflected in the letter of notification or the investigators reports.  Further, he states that because his security clearance was suspended, he was not able to take ADSW tours, which negatively contributed to his continued financial situation. 

     n.  He concludes in his rebuttal statement that his chain of command was aware of his financial predicament and that no one in his chain of command initiated charges against him using the procedures of the Uniform Code of Military Justice.  He further states, in effect, he honestly and in good faith reported his debts when personally interviewed and that he never demonstrated criminal intent, nor exhibited a lack of reliability and trustworthiness throughout his seventeen-year career serving on active duty and in the USAR program. 

7.  On 28 July 1997, the U. S. Army PSAB considered and subsequently denied the applicant's request to reinstate his security clearance and SCI access.  The Board President wrote in his decision memorandum that the applicant continued to show financial difficulties and that he lacked documentation to show concerted effort to rectify his outstanding financial obligations.  The President further stated that the applicant had received administrative due process and that no further consideration of his case would be considered for a minimum of one year.  At that time, the applicant's chain of command could request a security determination and that the applicant must be able to show, he had mitigated all of the disqualifying information. 

8.  On 17 October 2001, the applicant wrote a letter to the Commander of ARPERCEN requesting reinstatement of his security clearance so he could be activated with the U.S. Army Special Operations Command to support current or future operations.  The applicant, in pertinent part, restated the reason for his security clearance revocation and that without a valid security clearance he could not work for the U. S. military, his chosen profession.  He acknowledged that he had two outstanding debts.  The first debt was to the State of Washington for alimony and child support that he states his former wife falsely reported.  He further states that this state did not have jurisdiction over his divorce nor was he allowed to represent himself at the court hearing.  The second debt is to a telephone company, which he states violated their contract with him for they allowed his daughter to exceed the allowable charges in excess of the agreement.  He states when the telephone company in question apologizes to him and acknowledges their complicity he will pay the bill.  Finally, he concludes that he is a man of principles which clearly has gotten him into trouble but these principles are his strengths and that he is loyal to his family and country. 

9.  On 17 June 2004, the CCF issued a memorandum, which states in pertinent part, that the applicant did not provide sufficient evidence to explain, refute or mitigate the prior SCI access and security clearance determination.  The adjudicator acknowledged that the applicant's current credit report shows he did satisfactorily resolve his prior debts of child support and alimony payments, but the current credit report also shows he was in arrears on department store accounts, financial institutions, medical facilities and related medical treatment accounts.  The adjudicator wrote that the applicant's continued financial indebtedness, coupled with his inability to resolve delinquent accounts raises a security concern and that his conduct is not compatible with the standards required to entrust him with access to classified information.  The memorandum concluded with reaffirming the initial decision to suspend and then revoke the applicant's security clearance and SCI access. 

10.  On an unknown date, the applicant appealed the 17 June 2004 decision.  He states, in pertinent part, that the sole reason for his debts is his unemployment history extending over 32 months.  He states he does not deny the debts nor has he refused to make restitution on the debts.  Further, he was selected for promotion to lieutenant colonel in the USAR with a date of rank of September 1997 and that no member of his chain of command filed charges against him nor did his commanders view his financial and legal situations that of unbecoming an officer nor were derogatory comments entered on his OERs.  

     a.  He states, "It is not the responsibility of the personnel security offices to punish a soldier for actions their individual chain of command had accepted as valid and honorable."  He further stated that AR 600-15 (Indebtedness of Military Personnel) chapter 3, in pertinent part, does not include the revocation an individuals security clearance.  He states that it is the chain of command's responsibility to initiate suspension of a security clearance. 

     b.  He states, in effect, that indebtedness for child support is not a criminal matter.  He further states that the judges did not direct punishment, penalty or impose fines during his two court appearance after confinement pending a search warrant.  

     c.  He states, in effect, that the CCF representative determined that punishment was warranted based on his civil confinement prior to his two court appearances.  He states the judges did not find him liable, as they understood the difference of not being able to pay alimony and child support based on his unemployment history and those that are just unwilling to pay their court ordered alimony and child support payments to former spouses and children.

     d.  He states, in effect, that on 5 December 1996 a judge with the Defense Office of Hearings and Appeals implied that he was abusive to his spouse.  He argues that he was the victim of domestic violence and that his former wife had abused him for almost 10 years to include an attempt on his life prior to the dissolution of the marriage.  He states that his child came to live with him after her eighteenth birthday and that this fact should reflect on him favorably. 

11.  On 24 August 2004, the applicant prepared his appeal statement for the PSAB.  He states, in pertinent part, that he is loyal, reliable and trustworthy and that he has served over sixteen years in the Armed Forces in five theaters of operations and in over 40 foreign assignments.  He states he has never been relieved of command or an assignment nor has he received any judicial or nonjudicial punishment or letters of reprimand.

     a.  He states, in effect, that the regulation AR 380-67, paragraph 2-101, shows that the investigation and decision to grant access to classified information is based on all available information to include the person's loyalty, reliability, and trustworthiness.

     b.  He states, in effect, that his chain of command has held him in the highest regard as shown through his OERs.  His expertise in Special Operations had been recognized and used in the highest offices of the Department of Defense.

     c.  ARPERCEN has supported him throughout the process of appealing his revocation of his security clearance specifically because of the Global War on Terrorism (GWOT) and the manning requirements required to conduct operations in the GWOT.  He was alerted for mobilization from his Individual Mobilization Augmentee (IMA) position twice, but because he did not hold a valid security clearance, he could not be mobilized.  He states ARPERCEN did request an interim security clearance but the CCF denied it.

     d.  He states, in effect, his lack of a security clearance has negatively affected his ability to attain civilian employment in his chosen field of counter terrorism or security operations.  He states he had been employed as a counselor for a Domestic Violence organization, but left that employment while waiting to be mobilized in support of the GWOT.

     e.  He states, in pertinent part, that his indebtedness is due to his divorce specifically the bills that his spouse was ordered to pay by the courts.  She did not make payment as ordered.  The bills were in his name, therefore he is being held financially accountable.  He states that his combined alimony, child support, and house payments exceeded his monthly income that created financial hardship. 

     f.  He states, in effect, that the criminal conduct held so prominent in the moral judgment upon which his security clearance was revoked is erroneous.  The fact was he was held in jail because he could not make bond and that the judges presiding at his hearings did not file criminal charges against him for not paying alimony and child support based on the evidence that he had been making payments, but was currently unemployed.  

12.  On 7 October 2004, the U. S. Army PSAB considered the applicant's appeal and stated that he had not submitted sufficient evidence to mitigate his disqualifying factors.  Therefore, his appeal was denied and he was advised that the decision was final and that his due process was completed.  He was advised that after one year he could again request a security determination. 

13.  On 19 May 2006, the applicant was honorably discharged from the USAR per Orders D-05-611995, dated 19 May 2006, published by Human Resources Command-St. Louis.  

14.  The counsel provided the following statement, in pertinent part, in support to the applicant's request:

     a. in March 1991, the applicant was divorced from his abusive wife and his take home income was $2,800.00.  The court ordered alimony, child support, and house payment totaled $2,900.00.  He had to maintain a separate residence and fund his personal living expenses to include car payments.  He lost $1,500.00 a month for 14 months until the house sold.

     b.  in June 1991, the applicant's former spouse left North Carolina and took his life savings of $66,000.00 forcing the applicant to use his personal credit cards to pay his bills.

     c.  in February 1993, the applicant was arrested for his inability to pay child support.  The applicant spent one night in jail and paid $105.00 in court costs.

     d.  in November 1993, the applicant was arrested a second time for his inability to pay child support.  He spent three days in jail and paid $105.00 in court costs. 

     e.  in April 1994, the Court awarded the former spouse all the funds she had taken in 1991.  The same Court lowered his child support to $1,053.00 because he was unemployed.

     f.  on 18 October 1995, the Deputy Chief of Staff, Operations, for the U. S. Army Special Operations Command requested the applicant by name in an ADSW status.     

     g.  On 27 December 1995, the CFF sent the applicant a letter indicating their intent to revoke the applicant's security clearance because of criminal conduct relating to his failure to pay child support and for excessive indebtedness.  The letter of intent identified the following:

	(1)  that the applicant owed AAFES a total of $657.87 as of 24 March 1995, which counsel states is incorrect and had been paid as the time of the writing.

	(2)  that the bill dated December 1993 for $43.34 payable to the North Carolina Natural Gas Company was supposed to be paid by his former spouse under court order.  She did not pay the bill therefore the applicant paid it.

	(3) Public Works Commission debt in the amount of $58.47 since 
December 1993.

	(4)  Records of Cablevision debt in the amount of $40.06 since 24 March 1995.

	(5)  Law offices of Maxwell and Melvin debt in the amount of $1,883.00 as of  24 March 1995 that the applicant refused to pay while a malpractice suit was pending.

	(6) 12th District Court records show child support in the amount of $1,592.98 as of  28 March 1995, with total arrears in the amount of $4,916.26 which the applicant was working on paying.

 	(7)  Office of Support and Enforcement in Tacoma (Washington) records show as of 22 June 1995 a debt in the amount of $5,166.26 for nonpayment of child support and alimony.

	(8)  Nations Bank debt as of 21 March 1994 for $5,958.15 for car repossession. 

     h.  the applicant rebutted the LOI explaining his martial problems and the inequitable child support and alimony awards that totaled more than his income.

     i.  on 5 December 1996, the applicant's case for reinstatement of his security clearance was heard in DOHA where the administrative law judge misstated the facts.

     j.  on 29 July 1997, the PSAB convened to consider the applicant's appeal and subsequently denied the appeal based on his alleged continuing financial difficulties and lack of indication suggesting that he was attempting to rectify the problem. 

     k.  in October 1997, the applicant requested reinstatement of his Top Secret security clearance to facilitate his activation from the USAR to the U. S. Army Special Operations Command.  In his request for reinstatement, he acknowledged two debts.

     l.  on 17 June 2004, the CCF notified the applicant that his application was insufficient to explain, refute, or mitigated his prior security clearance determination and they noted additional debts that were apparently on his credit report.

     m.  on 24 August 2004, the applicant appealed to the PSAB who denied his appeal on 7 October 2004 finding the mitigating evidence insufficient.

15.  The counsel states, in effect, that the PSAB abused its discretion in finding the mitigating evidence insufficient to justify the reinstatement of the applicant's security clearance and referred to AR 380-67, which states in pertinent part that excessive indebtedness and reoccurring financial difficulties can be a bar to security clearance eligibility.  He further states with AR 380-67 as his source, that adjudicators are to make a common sense determination clearly consistent with the interests of national security by considering factors such as the nature and seriousness of the conduct, the circumstances surrounding the conduct, the frequency and recency of the conduct, the age of the individual, the voluntariness of the participation and the absence or presence of rehabilitation. 

16.  Counsel further states, in effect, that when the applicant responded to his original periodic investigation the debts currently in question did not exist at that time and that his chain of command was fully aware of his financial problems and did not recommend a revocation of his security clearance.  The counsel concluded that the applicant suffered a harmful and financially damaging divorce and there is no rational justification for denying him reinstatement of his security clearance. 

17.  Army Regulation 680-67, states in pertinent part, that the following conduct is considered disqualifying factors in adjudicating an individual's security clearance:

     a.  an established pattern of criminal conduct whether the individual was convicted or not;

     b.  an arrest record where the individual was acquitted or charges dropped does not negate the security significance of the underlying conduct;

     c.  a history of bad debts, garnishments, liens, repossession, delinquent or uncollectible accounts or debts written off by creditors as uncollectible losses, a history or pattern of writing checks not covered by sufficient funds or on closed accounts; and 

     d.  indifference to or disregard of financial obligations or indebtedness or intention to not meet or satisfy lawful financial obligations or when present expenses exceed net income.  

18.  Army Regulation 380-67, states in pertinent part, that to ensure that DOD personnel security determinations are effected consistent with existing statues and Executive orders, the CCF at Fort Meade, Maryland, has been designed as the single central adjudication facility for the Department of the Army.  The Commander of the CCF shall have the authority to act on behalf of the head of the Secretary of the Army with respect to personnel security determinations. 

19.  Army Regulation 380-67, states in pertinent part, that an individual can be found unsuitable for showing a disregard of public laws, statues, Executive orders or regulations, criminal or dishonest conduct, acts of omission or commission that indicate poor judgment, unreliability or untrustworthiness, excessive indebtedness, and recurring financial difficulties.  In the adjudicative process, when the adjudicator determines that an investigation is not completely favorable the investigation shall undergo at least two levels of review by adjudicative officials of military rank of 04 or civilian rating of GS-12/13.  When an unfavorable administrative action is contemplated, the letter of intent (LOI) to deny or revoke an individual's security clearance must be signed by an adjudicative official in the military rank of 05 or civilian equivalent of GS-14/15.  A final notification of unfavorable administrative action, subsequent to the issuance of the LOI, must be approved and signed by full colonel or civilian equivalent GS-14/15.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, that is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

21.  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions when it is deemed necessary, and the Director of the ABCMR may grant a formal hearing whenever justice requires.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the PSAB abused its discretion in denying him his request for reinstatement of his security clearance.  He also contends that based on this abuse his security clearance should be reinstated and all records and evidence associated with his security suspension should be expunged from his record.

2.  The PSAB reviewed the applicant's request to reinstate his security clearance twice in the past ten years, first in 1997, and then again in 2004.  The applicant's appeal was denied both times by the PSAB.  An adjudicative lawyer at the DOHA heard his appeal and did not reinstate the applicant's security clearance.  The applicant contends that throughout the past 15 years he has not been able to retain employment through the USAR program or civilian agencies because of his pending appeals requesting reinstatement of his security clearance.  

3.  The investigations and oral interviews completed during his periodic background investigation, required every five years, revealed an extensive history of indebtedness to firms in the private sector and to the courts for delinquent alimony and child support payments.  The applicant contends that all his financial difficulties resulted from an unfavorable divorce where he states he was the victim of domestic violence and due to his chronic unemployment after being released from active duty in 1990.  During his second appeal, investigators revealed he had paid his debts identified on 27 December 1995 except two debts.  The first debt that remained unpaid was to his divorce lawyer which he is contesting in a malpractice suit and the second was to the State of Washington which he states did not have jurisdiction over his North Carolina court ordered alimony and child support payments.  He also states that he was arrested twice but he was never convicted in trial court, as the judges understood his financial difficulties were due to his chronic unemployment history.  The investigators found through their research while processing his request to reinstate his security clearance that in fact the applicant had incurred new financial debts that were a matter of public record through various credit reporting agencies.

4.  The applicant's consistent point is that his chain of command never initiated the revocation of his security clearance and that this issue should be under the jurisdiction of his unit commander.   The regulatory guidance shows that in fact the CCF does have jurisdiction and can upon its findings of unfavorable information suspend and then revoke a security clearance for DOD personnel, DOD Civilians, and private contractors.  

5.  The applicant contends that he was not given due process and that the findings of indebtedness and criminal intent are not grounds to revoke his security clearance.  In this regard, he requested that his security clearance be reinstated through ARPERCEN in 2001.  The second background investigation revealed that he had paid his previous debts except two and that he had incurred new debts.  At one point, his indebtedness was estimated at $26,000.  The adjudicator recommended that the applicant's security clearance not be reinstated and the applicant pursued his right to appeal to the PSAB.  The second PSAB denied his appeal on grounds that he had not provided sufficient mitigating evidence.  Throughout the appeal process, the applicant states that he is a man of principles and will not make payment to his former divorce lawyer or the State of Washington for he states these debts are being mitigated through the court system or that the State of Washington did not have jurisdiction over the decisions of the courts in North Carolina.  As a man of principle, he states, he will not pay these outstanding debts.

6.  The applicant received due process through the PSAB on two separate occasions.  The PSAB stated that he had not provided them with justification or mitigating evidence that would support reinstatement.  The records show that the applicant was in debt with new financial obligations.  The applicant contends two mitigating facts in his appeals.  The first was his financial hardship was due to an unfavorable divorce and that his chronic unemployment was due to his inability to reinstate his security clearance so he could seek employment through ADSW tours or mobilization in his specialty of Special Operations.  However, these matters of mitigation were taken into consideration by the PSAB.  In view of the applicant's continued indebtedness, their decision appears fair and equitable. 

7.  The applicant has failed to provide sufficient evidence to the Board to reinstate his security clearance and expunge his record of all related documents. 

8.  The applicant requested a formal hearing.  A review of his supplemental statement and its supporting documents shows there is insufficient evidence to support a conclusion that a formal hearing is necessary to serve the interest of justice in this case. 








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__HOF  _   __RCH__  __JTM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





_____Hubert O. Fry, Jr.____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.