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ISCR Case 17-02208.a1 — CASE

ISCR Case 17-02208.a1denied

Case Headnote

ISCR Case No. 17-02208.a1

Feb 15, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline F (Financial Considerations) due to significant financial issues. The applicant had two delinquent debts exceeding $199,000 and failed to file federal income taxes for the years 2013, 2014, and 2015. Disqualifying conditions F3 and F2 were raised, as the applicant provided no documentation to demonstrate resolution of these financial problems.

The Appeal Board upheld the denial, noting that the applicant was adequately informed of his rights and had knowingly waived legal representation. The Board rejected the applicant's claims of due process violations and declined to consider new evidence presented after the initial hearing.

Ultimately, the applicant's failure to address substantial delinquent debts and unfiled taxes, coupled with a lack of mitigating evidence, led to the denial of his security clearance.

Conditions Referenced

Disqualifying

F3raisedInability or Unwillingness to Satisfy Debts
F2raisedDelinquent Debts

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 issuedJun 30, 2017
Answer filed—
Hearing heldOct 31, 2018
Decision dateFeb 15, 2019

Cite For

Financial Considerations Under Guideline F
Due Process Rights in Security Clearance Cases
Waiver of Legal Representation in Security Clearance Hearings

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 an applicant who was denied a security clearance based on financial considerations. The applicant argued that he was denied due process due to delays in processing his case and that the Judge erred in his assessment of mitigation factors. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued he was denied due process due to the length of time taken to process his case.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant asserted the Judge erred in his mitigation analysis and whole-person assessment.

Why the Board ruled this way

The Board found that the Applicant was provided adequate notice and opportunity to respond to the security concerns, and that the Judge's decision was supported by substantial evidence and not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael 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: Applicant argues that he was not provided due process because of the length of time it has taken to process his case. His argument fails to establish that he was denied any due process rights under the Directive. He was provided adequate notice of, and opportunity to respond to, the alleged security concerns. The Appeal Board has no authority to rule on delays in conducting security investigations or in processing cases. Applicant also argues the purported delays contributed to his decision to not seek legal representation in this case. This argument has no merit. The Judge properly advised Applicant of his rights to have a lawyer or personal representative assist him at the hearing, and Applicant acknowledged he understood those rights. He knowingly waived his right to legal representation. Adverse decision affirmed. CASENO: 17-02208.a1 DATE: 02/15/2019 DATE: February 15, 2019 In Re: ---------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-02208

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 June 30, 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 October 31, 2018, after the hearing, Administrative Judge Roger C. Wesley denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged that Applicant had two delinquent debts exceeding $199,000, failed to file his 2013-2015 Federal income tax returns as required, and failed to pay his 2013-2014 Federal income taxes as required. The Judge found against Applicant on each SOR allegation, noting he provided no documentation that he filed the tax returns in question, paid the past-due taxes, or resolved a delinquent mortgage loan. The Judge noted Applicant’s military career and his status as a graduate of a distinguished military academy. In his appeal brief, Applicant argues that he was not provided due process because of the length of time it has taken to process his case. He notes his case has taken three and a half years to resolve. His argument fails to establish that he was denied any due process rights under the Directive. He was provided adequate notice of, and opportunity to respond to, the alleged security concerns. The Appeal Board has no authority to rule on delays in conducting security investigations or in processing cases. See, e.g., ISCR Case No. 14-04186 at 3-4 (App. Bd. Oct. 28, 2015) and ISCR Case No. 11-12730 at 2 (App. Bd. Sep. 4, 2013). Applicant also argues the purported delays contributed to his decision to not seek legal representation in this case. This argument has no merit. The Judge properly advised Applicant of his rights to have a lawyer or personal representative assist him at the hearing, and Applicant acknowledged he understood those rights. Tr. at 7. He knowingly waived his right to legal representation. Applicant’s brief asserts that he has now filed his delinquent tax returns, has placed his primary residence for sale, and will use the proceeds of that sale to resolve his debts. These assertions constitute new evidence that the Appeal Board cannot consider. Directive ¶ E3.1.29. Applicant cites to a case of a public person that was in the news. The Board lacks jurisdiction to review the merits of a case committed to another Government body. See, e.g., ISCR Case No. 15-04953 at 3-4 (App. Bd. May 4, 2017). Furthermore, each case must be adjudicated on its own merits. Directive, Encl. 2, App. A ¶ 2(b). Applicant also asserts that the Judge erred in his mitigation analysis and whole-person assessment. He emphasizes, for example, his service in the military and as a defense contractor, his lack of security violations, and the impact of the Great Recession on his financial situation. He argues that he is not a threat to national security. His arguments, however, are neither enough to rebut the presumption that the Judge considered all of the evidence in the record nor sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-02488 at 3 (App. Bd. Aug. 30, 2018). Additionally, Applicant highlights the impact that the denial of his security clearance has had on him. The Directive does not permit us to consider the impact of an unfavorable decision. See, e.g., ISCR Case No. 14-04202 at 4 (App. Bd. Dec. 24, 2015). Applicant has failed to establish 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, Encl. 2, App A. ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael 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