ISCR Case No. 20-01262

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ISCR Case No. 20-01262

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) 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

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.”

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