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ISCR Case 19-00520.a1 — CASE

ISCR Case 19-00520.a1denied

Case Headnote

ISCR Case No. 19-00520.a1

Feb 7, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline F (Financial Considerations) due to significant and ongoing financial issues. These issues included a bankruptcy and outstanding tax liabilities. The initial decision cited Disqualifying Conditions F1 and F3.

The applicant's financial problems were determined to be unmitigated, leading to the denial. Upon appeal, the board affirmed the original decision. The board found that the applicant's arguments did not demonstrate that the judge's initial ruling was arbitrary, capricious, or contrary to law.

Consequently, the appeal was unsuccessful, and the security clearance remained denied.

Conditions Referenced

Disqualifying

F1raisedInability to Satisfy Debts
F3raisedDelinquent Accounts

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

Procedural Posture

SOR issuedMar 11, 2019
Answer filed—
Hearing heldDec 11, 2019
Decision dateFeb 7, 2020

Cite For

Affirmation of Denial Due to Ongoing Financial Issues Under Guideline F
Insufficient Mitigation of Financial Problems
Standards for Evaluating Security Clearance Eligibility in Relation to Financial Considerations

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 challenged the Judge's decision as 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 belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

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.

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 decision, including a rational connection between the facts found and the choice made. The Board concluded that the Judge did not commit any harmful error in denying the security clearance.

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: The language that Applicant is challenging is not a finding the Judge made regarding him. Rather, the challenged language is part of the Judge’s quote from the Concern Paragraph in Guideline F. The Judge cited the Concern Paragraph to set the stage for his analysis of the facts in the case. To the extent Applicant may be arguing that the SOR does not allege security concerns, we note the Directive presumes there is a nexus or rational connection between proven circumstances under any of its guidelines and an applicant’s security eligibility. Direct or objective evidence of nexus is not required. Adverse decision is affirmed. CASE NO: 19-00520.a1 DATE: 02/07/2020 DATE: February 7, 2020 ) In Re: ) ) ------------------- ) ISCR Case No. 19-00520 ) ) Applicant for Security Clearance ) )

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 March 11, 2019, 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 11, 2019, after the hearing, Administrative Judge Michael H. Leonard 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 in the appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge summarized the case as follows: Applicant experienced a business downturn and eventual business failure that concluded with selling the business in late 2011. The resulting financial problems included bankruptcy court proceedings, foreclosure of his personal residence, and tax problems with state and federal tax authorities. Pursuant to federal tax liens, he still owes the IRS about $66,000 for a civil penalty for multiple tax periods. Although the conditions that resulted in his financial problems were largely beyond his control, his tax problems with the IRS have gone on for too many years to justify complete mitigation. Accordingly, this case is decided against Applicant. [Decision at 1.] Applicant’s appeal brief contains documents and assertions that are not contained in the record. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. In his appeal brief, Applicant stated: Having read the reasons for denial of a security clearance, I challenge the statements of “inability to live within one’s means’[sic], meet financial obligations may indicate poor self-control, lack of judgment or willingness [sic] to abide by rules and regulations” arising in questionable persons [sic] reliability, on the grounds of the evidence shown at the hearing, and the years of evidence in my financial history, as well as my character references by those whom were willing to stand up and recognize my judgment, self-control and trustworthiness. [Appeal Brief at 1.] The language that Applicant is challenging is not a finding the Judge made regarding him. Rather, the challenged language is part of the Judge’s quote from the Concern Paragraph in Guideline F.1 The Judge cited the Concern Paragraph to set the stage for his analysis of the facts in the case. To 1 In the decision, the Concern Paragraph of Guideline F is quoted inaccurately with language from both the current version and the prior 2006 version. the extent Applicant may be arguing that the SOR does not allege security concerns, we note the Directive presumes there is a nexus or rational connection between proven circumstances under any of its guidelines and an applicant’s security eligibility. Direct or objective evidence of nexus is not required. See, e.g., ISCR Case No. 15-08385 at 4 (App. Bd. May 23, 2018). This challenge does not establish any error. Applicant’s brief is essentially a recitation of the facts surrounding his financial problems and amounts to a challenge to the Judge’s weighing of the evidence. 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. 15-04856 at 2-3 (App. Bd. Mar. 9, 2017). Applicant failed to establish that the Judge committed any harmful error. The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s adverse 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 at 528. 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