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ISCR Case 19-01560.a1 — CASE

ISCR Case 19-01560.a1denied

Case Headnote

ISCR Case No. 19-01560.a1

Aug 3, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) due to approximately $64,000 in delinquent debts. These debts were attributed to a period of unemployment and personal circumstances.

The appeal board affirmed the denial, concluding that the applicant's claims of financial hardship did not sufficiently mitigate the security concerns. The judge had determined that the applicant failed to demonstrate reasonable efforts to resolve the debts or that the financial issues would be resolved in the near future.

The decision highlighted that while Guideline E, paragraph 20, disqualifying conditions were raised, the mitigating conditions under Guideline E, paragraph 21, were not adequately applied to overcome the concerns. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant's claims of financial hardship and a tentative payment plan were insufficient to mitigate the concerns.

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 20, 2019
Answer filed—
Hearing heldApr 29, 2020
Decision dateAug 3, 2020

Cite For

Affirmation of Adverse Decision Based on Financial Considerations Under Guideline F
Insufficient Evidence of Mitigation Regarding Financial Hardship
The Standard for Granting Security Clearance Related to National Security Interests

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 and personal conduct. The applicant argued that the Judge mis-weighed evidence regarding his financial difficulties. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowGregg A. Cervi — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge considered the relevant evidence and articulated a satisfactory explanation for the decision, with a rational connection between the facts found and the choice made. The Judge's adverse decision was sustainable on the record.

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 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; Guideline E DIGEST: Applicant cites to various pieces of record evidence which, he contends, the Judge did not consider or that he mis-weighed, including his period of homelessness, his unemployment, his care for his father, his tentative payment plan, etc. The Judge made findings about the things that Applicant has mentioned and explicitly addressed at least some of them in his Analysis. A Judge is not expected to address every piece of evidence in the record, which would be a virtual impossibility. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record or to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision is affirmed. CASE NO: 19-01560.a1 DATE: 08/03/2020 DATE: August 3, 2020 ) In Re: ) ) ---------------------- ) ISCR Case No. 19-01560

) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Joseph D. Jordan, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 20, 2019, 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 hearing. On April 29, 2020, after the hearing, 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 raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we affirm. Applicant owes about $64,000 in delinquent debts. He attributed his financial problems to several things: a two-year period in which his wife was stationed overseas; a year and a half of unemployment while caring for his ill father; and to medical treatment. In his security clearance application, Applicant disclosed unemployment during all of 2017 as well, although he later stated that he had been self-employed during that time. Applicant disclosed that he was homeless for about three months in 2017. He has a tentative payment plan but is waiting on the result of his clearance adjudication before implementing it. Applicant submitted information from a credit management company and an enrollment letter from a financial education company. His financial statement shows a negative balance of nearly $1,300. In January 2020 his salary was increased to $80,000, and he receives income from two investment properties. Applicant served in the military, deploying abroad in support of U.S. military objectives. His employer describes him as trustworthy, honest, and loyal. The Judge characterized Applicant’s presentation as promises to pay off debts in the future, which he found insufficient to mitigate the concerns addressed in the SOR. He stated that Applicant had not demonstrated reasonable efforts to pay his debts and that there is insufficient evidence that his financial problems will be resolved in the near future. The Judge cited to Applicant’s military service, his employment history, his delinquent debts, and the circumstances underlying them. He ultimately concluded that Applicant had not met his burden of persuasion to mitigation. Applicant cites to various pieces of record evidence which, he contends, the Judge did not consider or that he mis-weighed, including his period of homelessness, his unemployment, his care for his father, his tentative payment plan, etc. The Judge made findings about the things that Applicant has mentioned and explicitly addressed at least some of them in his Analysis. A Judge is not expected to address every piece of evidence in the record, which would be a virtual impossibility. See, e.g., ISCR Case No. 18-02872 at 3 (App. Bd. Jan. 15, 2020). Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record or to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Id. 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, 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 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