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ISCR 20-01470: Guideline F security clearance appeal, denied (2023) · CASE

ISCR Case 20-01470denied

Case headnote

ISCR Case No. 20-01470

Jan 30, 2023· Hon. Gregg A. Cervi· appeal

Summary

A mid-forties veteran with a family was denied a U.S. DOHA security clearance under Guideline F, Financial Considerations. The denial stemmed from approximately $60,600 in delinquent credit card debts. The applicant raised several mitigating conditions, including the age of some debts and the financial impact of the COVID-19 pandemic.

However, the appeal board upheld the denial. They determined that the applicant's financial issues were recent and ongoing, which undermined the claims of mitigation. Furthermore, the applicant did not challenge specific factual findings from the initial decision.

Ultimately, the appeal board found no harmful error in the judge's application of the mitigating conditions and concluded that the applicant failed to demonstrate such error. Consequently, the security clearance was denied.

Conditions referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20(a)rejectedThe Behavior Was Not RecentThe judge determined that the applicant's financial issues were recent and ongoing.
AG ¶ 20(c)rejectedThe Applicant Has Made Good Faith Efforts to Resolve DebtsThe applicant's efforts were insufficient given the ongoing nature of the debts.
AG ¶ 20(d)rejectedThe Applicant Has a Reasonable Plan to Resolve DebtsThe applicant's plan was not credible given the lack of payments and ongoing financial issues.

Key rule quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedAug 13, 2021
Answer filed—
Hearing heldNov 29, 2022
Decision dateJan 30, 2023Decision affirmed on appeal.

Cite for

Ongoing Nature of Financial Issues Under Guideline F
Insufficient Evidence of Mitigating Circumstances Related to Financial Considerations
Standard for Granting Clearance Consistent with National Security

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 under Guideline F. The applicant argued that the Administrative Judge erred in applying mitigating conditions and the whole person concept. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant contended the Judge erred in his application of the mitigating conditions.
Whole-person analysis, raised by the applicantRejected
Applicant argued that the Judge did not consider the whole person concept adequately.

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 Board rejected the applicant's arguments regarding the application of mitigating conditions and the whole person concept as insufficient to demonstrate harmful error.

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)
Moira Modzelewski
Gregg A. Cervi

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. 20-01470

)

) 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: January 30, 2023

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 August 13, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis of that decision—security concerns raised under Guideline F (Financial Considerations) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 29, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant is in his mid-forties and recently married, with a young child and two stepchildren. A veteran, he has been continuously employed by defense contractors since his honorable discharge in 2007. The SOR alleged two delinquent credit card accounts of about $50,800 and $9,800. Applicant accumulated the debt on the two accounts through about 2016 and then stopped making

payments. He has made no payments since that time. Applicant stated that he contacted the creditors but could not afford their proposed settlement offers. Although he sold a condominium in an effort to pay the debts, he instead used the proceeds for living expenses, as his wife was unable to find work during the COVID-19 pandemic. Applicant has not accrued any new delinquent debt, is saving money, and plans to resolve the two alleged debts. Applicant has not challenged any of the Judge’s specific findings of fact. Rather, he contends the Judge erred in his application of the mitigating conditions and the whole person concept. For example, Applicant argues that the Judge did not take into consideration that his delinquent debts are over six years old and not likely to recur. Appeal Brief at 1. However, the Judge’s determination that Applicant’s financial issues are “recent and ongoing”1 is firmly rooted in Appeal Board precedent. It is well established that an applicant’s ongoing, unpaid debts evidence a continuing course of conduct and, therefore, can be viewed as recent for purposes of the Guideline F mitigating conditions. See, e.g., ISCR Case No. 15-01690 at 3 (App. Bd. Sep. 13, 2016). Applicant also argues that the Judge failed to consider “the mitigating circumstance of the Covid-19 pandemic,” citing to Hearing Office cases in which he believes that factor was given weight. We note first that Applicant’s SOR debts were delinquent and unaddressed for several years prior to the onset of the pandemic. Second, each case is decided on its own merits. Directive, Encl. 2, App. A ¶ 2(b). The Hearing Office cases that Applicant cites are binding neither on the Judge in his case nor on the Appeal Board. See, e.g., ISCR Case No. 19-03344 at 3–4 (App. Bd. Dec. 21, 2020). None of Applicant’s arguments are enough to rebut the presumption that the Judge considered all of the record evidence or to demonstrate 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 failed to establish that the Judge committed any harmful error or that he should be granted any relief on appeal. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with 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.” 1 Decision at 5.

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board