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ISCR Case 22-01120 — CASE

ISCR Case 22-01120denied

Case Headnote

ISCR Case No. 22-01120

Dec 26, 2023· Hon. Gregg A. Cervi· appeal

Summary

A security clearance application for a retired military member in his mid-50s was denied under Guideline F, Financial Considerations. The applicant faced denial due to eight delinquent debts totaling approximately $21,000.

The applicant admitted to these debts, which had existed for several years without recent payments or concrete plans for resolution. While the applicant mentioned working on his credit report and considering bankruptcy, these actions were deemed insufficient to mitigate the financial concerns.

The adjudicator applied disqualifying condition F.3, noting the applicant's history of not meeting financial obligations. Although mitigating conditions F.2 and F.3 were considered, the applicant failed to demonstrate sufficient efforts to resolve the debts. Consequently, the denial of the security clearance was affirmed on appeal.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Difficulties Were Largely Beyond the Person's ControlThe applicant did not provide sufficient evidence to support this claim.
F.3rejectedThe Person Has Initiated a Good-faith Effort to Repay Overdue Creditors or Otherwise Resolve DebtsThe applicant's lack of recent payments and no current plans to address the debts did not demonstrate a good-faith effort.

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 issuedAug 3, 2022
Answer filed—
Hearing heldOct 25, 2023record closed after hearing
Decision dateDec 26, 2023appeal affirmed

Cite For

Financial Responsibility as a Key Factor in Security Clearance Eligibility
Rebuttable Presumption of Judicial Impartiality
Insufficient Mitigation of Financial Concerns Under Guideline F

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 an applicant who was denied a security clearance due to financial considerations, specifically eight delinquent debts. The applicant appealed, arguing that the Judge did not consider all relevant factors and that he was denied a fair hearing. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowWilford H. Ross — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge failed to consider matters beyond his credit history and that he lacked a fair chance at the hearing.
Due-process / fairness — raised by the applicantRejected
Applicant asserted that he was denied due process and that the Judge was biased against him.

Why the Board ruled this way

The Board found that the Judge examined the relevant evidence, articulated a satisfactory explanation for his decision, and that the record evidence supported the Judge's findings and conclusions. The decision was sustainable on the record.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Moira Modzelewski — 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. 22-01120 ) ) 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: December 26, 2023

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Deputy Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 3, 2022, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision―security concerns raised under Guideline F (Financial Considerations) of the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent Directive 4 (effective Jun. 8, 2017) and DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 25, 2023, after the record closed, Defense Office of Hearings and Appeals Administrative Judge Wilford H. Ross denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged that Applicant has eight delinquent debts. In responding to the SOR, Applicant admitted all of the allegations. The Judge found against Applicant on seven of the eight allegations. Applicant is in his mid-50s, divorced from his second spouse, and retired from the military. Decision at 2. In summarizing his decision, the Judge held that seven debts, totaling about $21,000, were not mitigated, while the SOR allegation found in Applicant’s favor was resolved

through involuntary deductions from his retirement pay. Id. at 6. Applicant has not made any recent payments on the remaining debts and has no current plans to make payments despite their existence for several years. Applicant is fully aware of the impact that delinquent debt has on his security eligibility, but “has not done sufficient work to resolve the issue.” Id. at 7. Applicant’s appeal brief suggests that the Judge failed to consider matters beside his credit history and that he felt as if he lacked a fair chance at the hearing to gain clearance eligibility. He also argues that he has been working on his credit report and will continue to do so, including by filing bankruptcy in the future. There is no reason to believe that the Judge did not consider all of the record evidence or Applicant’s testimony at the hearing. There is a rebuttable presumption that the Administrative Judge considered all of the record evidence, and the appealing party has a heavy burden when trying to rebut that presumption. See, e.g., ISCR Case No. 18-00110 at 5 (App. Bd. Mar. 31, 2020). Applicant’s submission of mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the 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). Regarding Applicant’s general assertion that he did not have a fair hearing, we construe this assertion as a claim that the Judge was biased against him and that he was denied due process. This assignment of error is unpersuasive. There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy burden of persuasion. See, e.g., ISCR Case No. 17-02391 at 2 (App. Bd. Aug. 7, 2018). We examined the entire record and Decision, paying particular attention to the transcript of the hearing. We find nothing therein that would cause a reasonable person to question the Judge’s impartiality in this case. In fact, the record shows the Judge and Department Counsel were courteous, instructive, and receptive to Applicant’s testimony, and the Judge held a full and fair hearing. The Judge rescheduled the hearing on two occasions at Applicant’s request to allow him to prepare and obtain representation. The Judge told Applicant he would continue the hearing for as long as necessary and he left the record open for Applicant to submit evidence after the hearing. Applicant did not submit any post-hearing documentary evidence on his behalf. Decision at 2; Tr. at 4-11. We find no reason to conclude that Applicant was denied the due process afforded by the Directive. See, e.g., ISCR Case No. 12-10122 at 2-3 (App. Bd. Apr. 22, 2016). Applicant failed to establish that the Judge committed any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for his 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: Moira Modzelewski Moira Modzelewski 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