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ISCR Case 20-01262 — CASE

ISCR Case 20-01262denied

Case Headnote

ISCR Case No. 20-01262

Jun 22, 2022· Hon. Moira D. Modzelewski· appeal

Summary

An applicant representing himself was denied a security clearance under Guideline F (Financial Considerations) due to three delinquent debts totaling nearly $38,000. While the judge initially found in the applicant's favor on seven allegations, the appeal was ultimately denied because the applicant did not sufficiently mitigate the security concerns associated with these debts.

The denial was based on the applicant's failure to provide adequate evidence to mitigate the financial concerns. Although the judge's findings regarding the applicant's income were not fully supported by evidence, this error was deemed harmless and did not alter the outcome.

The applicant's arguments on appeal did not demonstrate that the judge's weighing of the evidence was arbitrary or capricious. Consequently, the judge's decision to deny the clearance was affirmed as sustainable and free from harmful errors.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy 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 issuedFeb 12, 2021
Answer filed—
Hearing heldMar 31, 2022
Decision dateJun 22, 2022

Cite For

Denial of Security Clearance Due to Unresolved Financial Obligations Under Guideline F
Burden on Applicant to Mitigate Security Concerns Related to Debts
Harmless Error Doctrine in the Context of Security Clearance Appeals

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, specifically three delinquent debts totaling nearly $38,000. The Applicant argued that the Judge erred in findings of fact and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful errors and that the decision was sustainable on the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in weighing the evidence regarding his professional qualifications and performance.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant claimed the Judge erred in finding his income to be $93,000 annually, but this error was deemed harmless.

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 denial of the security clearance. The Applicant failed to demonstrate any harmful errors that would warrant a reversal.

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

James F. Duffy — Chair
Jennifer I. Goldstein
Moira Modzelewski

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

APPEARANCES

_______________________________________________ ) In the matter of: )

)

------ )

ISCR Case No. 20-01262

)

) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: June 22, 2022

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 February 12, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 31, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera 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 nine delinquent debts totaling about $41,000 and that he received a Chapter 7 bankruptcy discharge in 2009. The Judge found in favor of Applicant on seven allegations, including the bankruptcy discharge, and against him on three alleged debts totaling nearly $38,000. Applicant raised the following issues on appeal: whether the Judge erred in the findings of fact and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. For reasons stated below, we affirm the Judge’s decision.

In his appeal brief, Applicant presents arguments concerning each of the SOR allegations, including those in which the Judge found in his favor. The Judge’s favorable findings are not at issue on appeal. Applicant also submits documents that were not presented to the Judge for consideration. Those documents constitute new evidence that the Appeal Board is prohibited from considering. See Directive ¶ E3.1.29. In the decision, the Judge concluded that Applicant failed to present sufficient evidence to mitigate the security concerns arising from the three debts and noted the absence of certain corroborating documentation. On appeal, Applicant argues the Judge never asked for those documents. To the extent that Applicant is contending the Judge erred in failing to request those documents, we find no merit in that argument. There is no requirement for a judge to ask applicants for specific evidence. Having admitted the delinquent debts at issue, the burden was on Applicant to mitigate the security concerns arising from those debts. Directive ¶ E3.1.15. The Judge’s comments in question were just observations that Applicant failed to present certain types of mitigating evidence. Applicant claims the Judge erred in finding that he has been making around $93,000 a year since being hired by his current employer in 2019. At the February 2022 hearing, Applicant testified he started working for his current employer in 2019 and his “current income” was $93,000 annually. Tr. at 28-29. In his brief, he asserts that he did not earn that amount when first hired by his current employer and correctly notes he was not asked at the hearing how long he had been earning that amount. Even though the Judge’s finding in question is not fully supported by substantial evidence, this error is harmless because it did not likely affect the outcome of the case. See, e.g., ISCR Case No. 19-01220 at 3 (App. Bd. Jun. 1, 2020). The balance of Applicant’s arguments is a disagreement with the Judge’s weighing of the evidence. For example, he argues that his professional knowledge, expertise, and commitment has never been questioned; notes that he has received accolades and awards for his work performance; and contends that he has upheld the highest professional standards. None of his arguments, however, are sufficient to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 21-00362 at 4 (App. Bd. May 4, 2022). Applicant also argues denial of his security clearance would be detrimental to his financial recovery. The Directive, however, does not permit us to consider the impact of an unfavorable decision. See, e.g., ISCR Case No. 19-01206 at 2 (App. Bd. May 13, 2020). Applicant failed to establish the Judge committed any harmful errors. 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: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board