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ISCR 21-00161: Guideline F security clearance appeal, denied (2023) · CASE

ISCR Case 21-00161denied

Case headnote

ISCR Case No. 21-00161

Jul 11, 2023· Hon. Gregg A. Cervi· appeal

Summary

A federal contractor in his mid-40s with military service was denied a security clearance due to financial issues and criminal conduct. The applicant faced disqualifying conditions under Guideline F (Financial Considerations), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct).

The applicant failed to demonstrate responsible resolution of approximately $64,000 in financial issues. Additionally, the judge found against the applicant on all allegations under Guideline J, which included multiple DUIs and other criminal conduct.

Despite acknowledging the applicant's efforts in alcohol treatment, the appeal board upheld the denial. The board emphasized the applicant's failure to resolve his financial problems and the adverse impact of his past criminal behavior, leading to the ultimate denial of his security clearance.

Conditions referenced

Disqualifying

AG ¶ 19raisedCriminal Conduct
AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 23appliedAlcohol Consumption

Key rule quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”
AG ¶ 2(b)

Procedural posture

SOR issuedApr 28, 2021
Answer filed—
Hearing heldMay 15, 2023
Decision dateJul 11, 2023Decision affirmed on appeal.

Cite for

Evaluation of Financial Responsibility Under Guideline F
Impact of Criminal Conduct on Security Clearance Eligibility
Consideration of Mitigating Factors Related to Alcohol Consumption

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 security clearance based on financial considerations, alcohol consumption, and criminal conduct. The Applicant argued that the Judge overlooked important information and made arbitrary decisions. The Board affirmed the Judge's decision, finding no harmful error and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPamela C. Benson denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline GGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge overlooked certain information regarding his financial problems and military service.
Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended that the Judge overlooked his participation in a treatment program and abstinence from alcohol.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claimed that the Judge's decision was arbitrary and capricious.

Why the Board ruled this way

The Board found that the Judge examined the relevant evidence and articulated a satisfactory explanation for her decision, with sufficient record evidence to support her findings and conclusions.

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)
Gregg A. Cervi
Allison Marie

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. 21-00161

)

) Applicant for Security Clearance ) _______________________________________) Date: July 11, 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 April 28, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guideline F (Financial Considerations), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct) of the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On May 15, 2023, Defense Office of Hearings and Appeals Administrative Judge Pamela C. Benson denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant, in his mid-40s, served on active duty in the military from 2001 until his honorable discharge in 2006 and has been a member of the National Guard since 2007. He was divorced in 2019 and has one minor child. Applicant has been employed by a federal contractor and has held a security clearance since about 2014. The Judge found against Applicant on all fourteen of the SOR’s Guideline F allegations, which consisted of delinquent medical, consumer, auto, and education debt totaling approximately $64,000. The Judge also found adversely on the Guideline J allegations concerning Applicant’s arrests for driving under the influence (DUI) in 1998, 2005, and 2017, for domestic assault in 2011,

and for leaving the scene of an accident with property damage in 2020. The Judge found in favor of Applicant on the Guideline G allegations. On appeal, Applicant argues that the Judge’s decision overlooked certain information, including that his financial problems were linked to caring for his ailing father and mother and that he has served in the military for almost 22 years. Contrary to Applicant’s assertions, the Judge acknowledged the foregoing factors, but apparently placed less weight on them than Applicant would prefer. For example, the Judge found that Applicant “experienced financial hardship after traveling out-of-state to attend to his elderly parents and the unforeseen expenses associated with the travel and their medical care,” which amounted to a circumstance beyond his control, but concluded that Applicant failed to show that he acted responsibly to resolve his financial issues, which is required for mitigation credit. Decision at 6. Applicant’s disagreement with the Judge’s weighing of evidence is not sufficient to demonstrate that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Applicant also contends that the Judge overlooked that he voluntarily engaged in a treatment program and abstained from alcohol consumption for a year following his 2017 DUI. While it is true that the Judge did not specifically address Applicant’s participation in the program in her decision, she ultimately concluded that Applicant’s past alcohol-related misconduct was mitigated through the passage of time since the last incident. Even if the Judge had ruled adversely on the Guideline G allegations, Applicant’s argument would again amount to a disagreement with the Judge’s weighing of evidence. Because the Judge found favorably on the alcohol-related allegations, however, Applicant’s argument is moot. Finally, Applicant asserts that, without a security clearance, he will lose his job and ability to provide financially for his child and mother. The adverse impact of an unfavorable clearance decision is not relevant in evaluating clearance eligibility. See, e.g., ISCR Case No. 08-11222 at 2 (App. Bd. Sep. 9, 2009). Applicant failed to establish that the Judge committed any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for her decision, and the record evidence is sufficient to support the Judge’s findings and conclusions. 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). “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” AG ¶ 2(b).

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chair, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board