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ISCR Case 18-01480.a1 — CASE

ISCR Case 18-01480.a1denied

Case Headnote

ISCR Case No. 18-01480.a1

Apr 3, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A military veteran and federal contractor was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from significant financial issues and a past misdemeanor conviction.

Specifically, the applicant had approximately $36,500 in child support arrears and a past-due automobile loan of about $570. Additionally, a misdemeanor conviction for misapplying entrusted federal property raised concerns regarding personal conduct. These issues were cited as disqualifying conditions under AG ¶ 20 and AG ¶ 15.

Despite the applicant's claims of responsible behavior and character references, the appeal board upheld the denial. The board determined there was insufficient evidence to demonstrate rehabilitation or responsible financial management since the past misconduct, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

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 11, 2018
Answer filed—
Hearing heldJan 4, 2019
Decision dateApr 3, 2019

Cite For

Denial of Security Clearance Due to Financial Considerations Under Guideline F
Denial of Security Clearance Due to Personal Conduct Issues Under Guideline E
Insufficient Evidence of Rehabilitation or Responsible Financial Management Leading to Adverse Decision

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 the Applicant's past criminal conduct and financial issues. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert J. Kilmartin — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
No specific harmful error alleged — raised by the applicantRejected
Applicant did not identify any harmful error in the Judge's decision.

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 the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the adverse findings. The Judge's failure to explicitly address Applicant's explanation for the mail-handling offense was deemed a harmless error, and the overall decision was consistent with national security interests.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

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: In his 2017 security clearance application (SCA), Applicant disclosed that he was arrested for misapplying entrusted Federal property in 2015. The following year he pled guilty to that misdemeanor offense and paid a fine. He admitted that, while employed as a letter carrier for the U.S. Postal Service, he improperly dumped flyers and newsletters in a dumpster. He resigned from that job under adverse circumstances. Adverse decision affirmed. CASENO: 18-01480.a1 DATE: 04/03/2019 DATE: April 3, 2019 In Re: ------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 18-01480

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 11, 2018, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On January 4, 2019, after the hearing, Administrative Judge Robert J. Kilmartin denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant served in the military in Iraq, was honorably discharged from active duty, and continues to serve in the Reserves. He has experienced periods of unemployment from 2009 to 2016. He has worked for a Federal contractor since 2016. In his 2017 security clearance application (SCA), Applicant disclosed that he was arrested for misapplying entrusted Federal property in 2015. The following year he pled guilty to that misdemeanor offense and paid a fine. He admitted that, while employed as a letter carrier for the U.S. Postal Service, he improperly dumped flyers and newsletters in a dumpster. He resigned from that job under adverse circumstances. Applicant admitted the SOR allegation that he had a child support arrearage of approximately $36,500. His child support payments had been sporadic due to chronic unemployment. Starting in 2006, his pay was garnished for the arrearage. He provided a one-page payment history reflecting payments every two weeks of $425 in 2017 and $506 in 2018. His last reported payment was made during the month he responded to the File of Relevant Material (FORM). He also admitted the SOR allegation that he had a automobile loan past-due for about $570, with a balance of about $7,100. He gave the vehicle to a friend who agreed to take over the payments. The friend reneged on the deal. Applicant provided a letter from the auto-loan creditor reflecting he verbally authorized a payment of $291 in 2018. He was supposed to continue making monthly payments on that loan, but provided no documentation of further payments. He provided character letters attesting to his integrity and trustworthiness. The Judge found in favor of Applicant on a small debt that he denied and against him on the remaining SOR allegations. He had a fiduciary responsibility to deliver the mail. Insufficient time has passed from his misdemeanor mail-handling offense to conclude further misconduct will not likely happen again. He bears responsibility for his forced resignation due to his misconduct. He made only sporadic child support payments before a court order. It is unclear what child support payments he made before 2017 and why he was unemployed frequently. He only produced proof of one payment toward the auto loan. His alleged debts are recent and ongoing. He has not shown that he acted responsibly under the circumstances.

DISCUSSION

In his appeal brief, Applicant provides documents and details about the SOR allegations that were not previously presented to the Judge for consideration.1 Such matters constitute new evidence that the Appeal Board is prohibited from receiving or considering. Directive ¶ E3.1.29.

Applicant argues that he has regularly made support payments to his children and believes he is honoring his legal obligations, that he has acted responsibly in addressing his auto loan, and that he was subjected to racial slurs on his mail route that led to the one-time lapse of judgment in delivering newspaper flyers. In a background interview in the record, Applicant indicated that he was subjected to racial slurs on his mail route and reported that conduct to his supervisors without any follow-up action being taken. FORM Item 4. A Judge is presumed to have considered all of the evidence in the record, and Applicant has not rebutted that presumption in this case. See, e.g., ISCR Case No. 15-02854 at 2 (App. Bd. Nov. 22, 2016). Notwithstanding that presumption, it was error for the Judge not to address explicitly Applicant’s explanation for the mail-handling offense, even if he found it not credible. Given the adverse findings under Guideline F, the Judge’s failure to discuss Applicant’s explanation was harmless error. Applicant also states that he is extremely sorry for his work misconduct and made a promise never to do such a thing ever again. He maintains that, since his misdemeanor offense, he has “grown tremendously in character and matured in disposition.” Appeal Brief at 3. His arguments amount to a disagreement with the Judge’s weighing of the evidence and are not sufficient to establish that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06440 at 4 (App. Bd. Jan. 8, 2016). Applicant has not identified any harmful error in the Judge’s decision. 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.” 1 In his appeal brief, Applicant acknowledges that he previously “told only part of the story” and “now is [providing] the entire story and entire truth.” Appeal Brief at 3.

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