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ISCR Case 19-02295.a1 — CASE

ISCR Case 19-02295.a1denied

Case Headnote

ISCR Case No. 19-02295.a1

Sep 3, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

A Ph.D. holder in his fifties was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from 11 delinquent debts totaling approximately $27,700, which the applicant admitted were due to living beyond his means. Despite attending financial planning classes, he failed to demonstrate control over these financial issues.

Further concerns arose from his past employment history. The applicant was terminated from a federal position due to misconduct, specifically making false statements and failing to observe written procedures. This history raised questions about his reliability and judgment.

The appeal board affirmed the denial, concluding that the judge's decision to deny the clearance was free of harmful error. The applicant's lack of accountability for his past misconduct, combined with his ongoing financial difficulties, ultimately led to the denial.

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 issuedJan 16, 2020
Answer filed—
Hearing heldJun 2, 2021
Decision dateSep 3, 2021

Cite For

Denial Based on Financial Considerations Under Guideline F
Denial Based on Personal Conduct Under Guideline E
Affirmation of a Judge's Decision When No Harmful Error Is Established

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 was brought by the applicant after the Administrative Judge denied his request for a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge's decision was based on incomplete information and that there were errors in the findings regarding his Ph.D. and GPA. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues the Judge’s decision is based on incomplete information.
Erroneous finding of fact — raised by the applicantRejected
Applicant contends that the Judge erred in her findings about his Ph.D. and GPA.

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 did not commit any harmful error and that the decision was sustainable on the record. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision.

Standard of review applied

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

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; Guideline E DIGEST: Applicant argues the Judge’s decision is based on incomplete information. For example, he points out that he provided the names of character references in his security clearance application and none of them were contacted to obtain whole-person information about him. This argument is not persuasive. A Judge has no authority to interview individuals or otherwise serve as an investigator in the case, which would be inconsistent with his or her duty of impartiality. Adverse Decision Affirmed. CASE NO: 19-02295.a1 DATE: 09/03/2021 DATE: September 3, 2021 ) In Re: ) ) -------------------------- ) ISCR Case No. 19-02295

) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se

The Judge’s Findings of Fact and Analysis

The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 16, 2020, 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 June 2, 2021, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in her findings of fact and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. Applicant, who is in his fifties, works for a defense contractor. He is married, has a child, and holds a Ph.D. The SOR alleges that he has 11 delinquent debts totaling about $27,700. Applicant admitted each of these allegations. His financial problems arose because he was living beyond his means. About six years ago, he also lost a job and was unable to make consistent payments towards the delinquent debts. He attended financial planning classes and claims he has changed his spending habits and is living within his means. He has received settlement offers for some of the accounts, but each of the alleged debts remain unresolved. He has not demonstrated his financial problems are under control or unlikely to recur. About six years ago, Applicant was terminated from a Federal Government position due to misconduct. He had held that position for over 25 years. During this employment, he was charged with making false statements and failure to observe written procedures. He received a notice of proposed removal, but it was held in abeyance when he entered into a Last Chance Agreement (LCA), which placed him in a two year probationary status. In signing the LCA, he admitted the charges in the removal notice were true. About three or four months after signing the LCA, his employer determined he violated the agreement and removed him from the position. He appealed that decision to the Merit System Protection Board, but that appeal was dismissed for lack of jurisdiction because he waived his appeal rights in the LCA. He contends his removal from the position was unjust and based on his supervisor’s misunderstandings and incorrect assumptions regarding his conduct. He has not taken responsibility for his misconduct, which raises serious questions about his reliability, trustworthiness, and good judgment. Applicant has presented letters of recommendation that attest to his reliability, trustworthiness, and good judgment. He recently received his Ph.D. in Philosophy with an overall GPA of 3.71.

DISCUSSION

Applicant contends that the Judge erred in her findings about his Ph.D. and GPA, noting he has not completed his Ph.D in a different subject than the Judge noted. These errors, however, are harmless because they did not likely affect the outcome of the case. See, e.g., ISCR Case No. 11 15184 at 3 (App. Bd. Jul. 25, 2013). Applicant argues the Judge’s decision is based on incomplete information. For example, he points out that he provided the names of character references in his security clearance application and none of them were contacted to obtain whole-person information about him. This argument is not persuasive. A Judge has no authority to interview individuals or otherwise serve as an investigator in the case, which would be inconsistent with his or her duty of impartiality. See, e.g., ISCR Case No. 19-01539 at 4 (App. Bd. Jan. 9, 2020). Additionally, Directive ¶ E3.1.15 provides “[t]he applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” If Applicant wanted the Judge to consider specific evidence, he was responsible for presenting it to her. None of Applicant’s arguments are enough to rebut the presumption that the Judge considered all of the evidence in the record nor are they 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. 19-01400 at 2 (App. Bd. Jun. 3, 2020). Applicant notes a comment at the end of his interview summary to the effect that nothing in Applicant’s background could be used for blackmail. Even if that represents the considered opinion of the clearance investigator it is not binding on the DoD in its evaluation of Applicant’s case. See, e.g., ISCR Case No. 18-02158 at 3 (App. Bd. Aug. 7, 2019). 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, 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 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