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ISCR 21-02693: Guideline F security clearance appeal, denied (2022) · CASE

ISCR Case 21-02693denied

Case headnote

ISCR Case No. 21-02693

Oct 13, 2022· Hon. Moira D. Modzelewski· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to unresolved student loan debts and a lack of demonstrated responsible financial behavior. The appeal board affirmed this denial, citing the applicant's failure to provide documentary evidence to support claims of efforts to resolve the debts.

Further concerns arose from the applicant's financial priorities, as evidenced by expenditures on vacations and cars. These discretionary expenses undermined claims of responsible financial management. While the debts were legally unenforceable, this fact did not mitigate the applicant's lack of aggressive action to satisfy these financial obligations.

Ultimately, the denial was based on Disqualifying Condition F.1, emphasizing the necessity of corroborating evidence in security clearance evaluations and the importance of demonstrating responsible financial behavior.

Conditions referenced

Disqualifying

F.1raisedFinancial Considerations

Key rule quoted

“It is reasonable to expect an applicant to present corroborating documentation of his or her efforts to establish mitigation of the concerns raised in the SOR.”
ISCR Case No. 17-01193 at 4 (App. Bd. Jan 22, 2019)

Procedural posture

SOR issuedDec 29, 2021
Answer filed—
Hearing heldJun 7, 2022
Decision dateOct 13, 2022Appeal decision

Cite for

Importance of Corroborating Evidence in Financial Considerations Under Guideline F
Evaluation of Financial Priorities in Security Clearance Decisions
The Necessity for Applicants to Substantiate Claims of Debt Resolution Efforts

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. The applicant argued that the Judge made errors in fact-finding and mis-weighed evidence. The Board affirmed the decision, finding no harmful error that would change the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCaroline E. Heintzelman denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge failed to consider all evidence in the record and mis-weighed the evidence.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact, raised by the applicantError sustained
Applicant claimed the Judge erred in finding that his foreign trips were solely vacations.

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 findings were based on substantial evidence and reasonable inferences, and that the applicant did not demonstrate harmful error in the Judge's decision.

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

James F. Duffy (Chair)
James E. Moody
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. 21-02693

)

) Applicant for Security Clearance ) _______________________________________) Date: October 13, 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 December 29, 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 Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On June 7, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Caroline E. Heintzelman 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’s findings of fact contained errors, whether the Judge failed to consider all of the evidence in the record, or whether she mis-weighed the evidence, resulting in a decision that was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm.

The Judge’s Findings of Fact and Analysis Applicant’s SOR alleged four student loan debts owed to a bank, all incurred while he was an undergraduate. At the end of 2021 the bank notified Applicant that it was no longer attempting to collect these debts and that he was not required to make payments. Applicant “claimed that he did everything he could to satisfy these debts.” Decision at 2. These claimed efforts included partial payments, an attempt to set up a payment plan, an attempt to remove the co-signer, an attempt to amend the monthly payments, and attempts to pay the debts. Applicant “provided no documentary proof to support these assertions.” Id. Applicant attributed his inability to make payments to a co-signer, insofar as the bank would not agree to negotiate with him without that person’s participation. Applicant asserted that the co-signer was “off the grid, . . . uncontactable, and unwilling to cooperate with [bank] in any circumstances.” Decision at 2. He also asserted that the bank had been “held accountable in 2016 for illegal and unethical practices,” which impaired his ability to resolve his debts. He provided no documentary proof of his contentions. Id. at 2-3. Applicant took overseas vacations in 2017 and 2018, and in 2021 he purchased an automobile that entailed a monthly payment in excess of $800. Later that year he purchased another car, the monthly payments for which was a little over $1,000. These accounts are current. Applicant was unemployed from May through December of 2020, due to the Covid-19 pandemic. Though Applicant’s difficulty in resolving his student loans may have been affected by his unemployment, he did not demonstrate responsible action in regard to these debts. He failed to provide documentation in support of his claimed efforts to resolve his debts, there being “no evidence in the record, other than his claims, that he acted responsibly.” Decision at 5. That Applicant’s debts are now legally unenforceable does not mitigate his failure to have taken more aggressive action to satisfy his obligations. The Judge noted Applicant’s expenditures on things such as vacations and cars, which shows that “he picks and chooses” which creditors to pay. Decision at 5. The Judge concluded that Applicant had not met his burden of persuasion that he should have a security clearance.

DISCUSSION

Applicant challenges the Judge’s findings of fact, arguing that she did not address evidence favorable to him. This evidence includes his attempts to persuade his co-signer to cooperate in resolving the debts, the likely economic benefit of his formal education, information that could have been accessed through a URL cited in the Response to the File of Relevant Material (FORM), the purposes for his foreign travel, etc. Applicant attaches to his brief a copy of the information that he contends would have been available through the URL.1 Applicant’s appeal submission includes matters from outside the record, which we cannot consider. Directive ⁋ E3.1.29. We

note that in his security clearance application Applicant states that one of his foreign trips was for educational purposes. Item 2 at 34. This is at least somewhat inconsistent with the Judge’s finding that both trips were vacations. Accordingly, the challenged finding about the purpose of this trip is in error. However, we find no reason to conclude that, had this error not been made, the decision would have turned out differently. Accordingly, this error is harmless. See, e.g., ISCR Case No. 18-02581 at 3 (App. Bd. Jan. 14, 2020). We have examined Judge’s findings as a whole and conclude that they are based upon substantial evidence or constitute reasonable inferences that could be drawn from the evidence. See, e.g., ISCR Case No. 18-02581 at 3. A Judge cannot be expected to make findings about everything in a file, which would be a virtual impossibility. See, e.g., ISCR Case No. 18-02872 at 3 (App. Bd. Jan. 15, 2020). Contrary to Applicant’s arguments on appeal, the Judge’s findings capture the essential facts underlying the SOR allegations. Applicant has cited to no harmful error in the Judge’s findings of fact. Applicant’s arguments, including some of his challenges to the Judge’s findings, constitute in large measure a disagreement with the manner in which the Judge weighed the evidence. However, an ability to argue for a different interpretation of the evidence is not 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. 18-02872 at 3. Applicant’s arguments are not sufficient to rebut the presumption that the Judge failed to consider all of the evidence in the record. Id. Moreover, despite Applicant’s citation to the whole-person factors described in Directive, Encl. 2, App. A ⁋ 2(d), we conclude that the Judge satisfied these requirements insofar as she based her ultimate decision on the record evidence viewed as a whole. See, e.g., ISCR Case No. 18-02925 at 3 (App. Bd. Jan. 15, 2020). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, including in particular her comments regarding the absence of corroborating evidence. See, e.g., ISCR Case No. 17-01193 at 4 (App. Bd. Jan 22, 2019) (It is reasonable to expect an applicant to present corroborating documentation of his or her efforts to establish mitigation of the concerns raised in the SOR). 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board

FOOTNOTES

1 A Judge is not responsible for creating or reconstructing evidence, including documents retrievable by means of a URL or a hyperlink. For one thing, “[g]iven the dynamic and changing nature of the internet,” a Judge cannot be certain that documents accessed in this manner are identical to those an applicant seeks to introduce into evidence. See, e.g., ISCR Case No. 00-0628 at 3-4 (Apr. 26, 2002). In any event, a Judge may not act as a surrogate for either party. See, e.g., ISCR Case No. 17-04388 at 3 (App. Bd. Aug. 1, 2018).