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ISCR Case 17-02109.a1 — CASE

ISCR Case 17-02109.a1denied

Case Headnote

ISCR Case No. 17-02109.a1

Mar 6, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to eight delinquent debts, which raised security concerns. The appeal board affirmed the denial, concluding that the judge's decision was sustainable on the record and that any potential error was harmless.

Specifically, the board found no harmful error by the judge in the decision-making process. The applicant also failed to submit any post-hearing documentation to support his claims regarding the delinquent debts.

While Disqualifying Condition F.3 was raised, Mitigating Condition F.2 was applied. However, the presence of the eight delinquent debts and the lack of supporting documentation ultimately led to the denial of the security clearance.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Difficulties Were Largely Beyond the Person's ControlThe applicant did not provide sufficient evidence to support this claim.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedAug 10, 2017
Answer filed—
Hearing heldJul 10, 2018Applicant did not submit any exhibits.
Decision dateMar 6, 2019Appeal decision affirmed.

Cite For

Affirmation of Denial Based on Financial Considerations Under Guideline F
Due Process Issues Related to Post-hearing Submissions
Harmless Error Doctrine in Security Clearance Decisions

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of a security clearance based on financial considerations under Guideline F. The Applicant raised a due process issue regarding the submission of post-hearing documents. The Board affirmed the decision, finding no harmful error and that the Judge's decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowGregg A. Cervi — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant claimed he was denied due process due to not being able to submit post-hearing documentation.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that Applicant was not denied due process as he failed to provide evidence of submission of post-hearing documentation. The Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan — Chair
James E. Moody
James F. Duffy

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline F DIGEST: We have examined Applicant’s due process issue in light of the record as a whole. At the hearing on July 10, 2018, Applicant did not submit any exhibits. The Judge left the record open until August 3, 2018, to provide Applicant the opportunity to submit documentary evidence. In the decision, the Judge notes that Applicant did not submit any post-hearing documentation. A footnote in the decision also states, “Confirmed with Department Counsel on November 30, 2018, that no post-hearing documents were submitted.” Applicant does not state when or to whom he supposedly sent his post-hearing submission. Under the facts of this case, we conclude that Applicant has not made a prima facie showing that he submitted the document in question. Accordingly, we conclude that Applicant was not denied his right to due process. Adverse decision affirmed. CASENO: 17-02109.a1 DATE: 03/06/2019 DATE: March 6, 2019 In Re: --------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-02109

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 10, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 3, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Gregg A. Cervi denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s appeal brief raises a due process issue. In his brief, he includes matters from outside the record, which we are generally precluded from considering. Directive ¶ E3.1.29. However, we will consider new evidence insofar as it bears upon threshold questions such as jurisdiction or due process. See, e.g., ISCR Case No. 14-00812 at 2 (App. Bd. Jul. 8, 2015). The Judge found against Applicant on eight delinquent debts and in favor of him on three other debts, including the sole child support allegation. In his appeal brief, Applicant stated, “I don’t believe that the Judge made any mistake in his decision to revoke my clearance. I did mail documents pertaining to my child support that I believe were not received.” His appeal brief contains one attachment: a document from a state child support enforcement division that reflected his total unpaid child support obligation was $17,085 in May 2018, which is greater than the amount alleged in the SOR. We have examined Applicant’s due process issue in light of the record as a whole. At the hearing on July 10, 2018, Applicant did not submit any exhibits. The Judge left the record open until August 3, 2018, to provide Applicant the opportunity to submit documentary evidence. Tr. 37- 38. In the decision, the Judge notes that Applicant did not submit any post-hearing documentation. A footnote in the decision also states, “Confirmed with Department Counsel on November 30, 2018, that no post-hearing documents were submitted.” Applicant does not state when or to whom he supposedly sent his post-hearing submission. Under the facts of this case, we conclude that Applicant has not made a prima facie showing that he submitted the document in question. Accordingly, we conclude that Applicant was not denied his right to due process. Additionally, as noted above, the Judge found in favor of Applicant on the sole child support allegation. Even if the Judge had received the child support document in question before issuing the decision, it would not have likely affected the outcome of the case. Consequently, if a possible Government error occurred in the handling of that document, it was a harmless error. See, e.g, ISCR Case No. 11-15184 at 3 (App. Bd. Jul. 25, 2013). Applicant has not established that the Judge committed any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The case is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board