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ISCR 20-01126: Guideline F security clearance appeal, denied (2024) · CASE

ISCR Case 20-01126denied

Case headnote

ISCR Case No. 20-01126

Jul 25, 2024· Hon. Gregg A. Cervi· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to seven delinquent debts totaling approximately $28,500. The initial decision cited Disqualifying Condition AG ¶ 19.

The applicant failed to provide sufficient documentation to support claims of debt resolution or work performance related to these financial obligations. Consequently, the appeal affirmed the denial, finding no harmful error in the original decision.

The denial underscored the importance of national security in clearance determinations and the applicant's failure to mitigate the financial concerns.

Conditions referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Key rule quoted

“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)

Procedural posture

SOR issuedJul 8, 2022
Answer filed—
Hearing heldJun 6, 2024
Decision dateJul 25, 2024

Cite for

Affirmation of Denial Under Guideline F Due to Financial Delinquency
Importance of Providing Evidence in Mitigation Claims
Emphasis on National Security in Clearance Determinations

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 concerned the denial of a security clearance based on financial considerations. The applicant argued that the Administrative Judge's decision was arbitrary and capricious for not considering certain mitigating factors and for allegedly not reviewing submitted documents. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowNicole L. Noel denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The Administrative Judge's decision was arbitrary and capricious for failing to consider certain facts in mitigation.
Other, raised by the applicantRejected
Applicant's Counsel suggested that documents emailed to the Judge were not considered.

Why the Board ruled this way

The Board found no harmful error in the Administrative Judge's decision, which was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Moira Modzelewski (Chair)
Gregg A. Cervi
James B. Norman

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. 20-01126

)

) 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: July 25, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Samir Nakhleh, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On July 8, 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) of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 6, 2024, Defense Office of Hearings and Appeals Administrative Judge Nicole L. Noel denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we affirm the Judge’s decision. Under Guideline F, the SOR alleged seven delinquent debts totaling approximately $28,500. The Judge found against Applicant on all allegations. On appeal, Applicant argues that the Administrative Judge’s decision was arbitrary and capricious because it failed to consider certain facts in mitigation. Additionally, Applicant’s Counsel suggests that Applicant emailed documents to the Judge or her office that were not considered in her decision. As discussed below, our review reveals no basis for either allegation, and we affirm the Judge’s decision.

Turing to the first issue, Applicant argues that the Judge failed to consider the following “crucial facts”: that Applicant had paid the debt alleged at SOR ¶ 1.c; that he resolved a second debt through efforts, albeit unsuccessful, to locate the proper creditor; and that Applicant is a “standout performer at work.” Appeal Brief (AB) at 7. As the Judge noted in her decision, Applicant claimed to have paid the debt alleged in SOR ¶ 1.c, but he provided no documentation either at the hearing or post-hearing, although she kept the record open for over a month. Decision at 2. Similarly, Applicant provided no evidence regarding his work performance or his efforts to locate the creditor. This allegation is without merit. Regarding the second issue, Applicant’s Counsel does not raise the specter of missing evidence until the “Conclusion,” section of his brief, in which he requests remand to “[e]nsure all evidence and documents submitted by [Applicant] via email to the DOHA agent are included in the record.” AB at 8. With no further explanation, Counsel argues that “the case should be remanded to allow consideration of additional relevant evidence submitted by the originally pro se [Applicant]. Id. Counsel provides no details whatsoever about Applicant’s submissions or a copy of what was purportedly emailed. An applicant must make a sufficient proffer as to whether there is a sufficient basis for the Board to remand the case or take other corrective action. Counsel’s vague suggestion that Applicant emailed documents is not sufficient to establish a prima facie showing that Applicant actually submitted additional evidence or documents that were not included in the record. E.g., ISCR Case No. 14-04959 at 2 (App. Bd. Apr. 6, 2016). Applicant has not established that he was denied the due process afforded by the Directive. Applicant has failed to establish any harmful error below. The record supports a conclusion that 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). “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 in ISCR Case No. 20-01126 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: James B. Norman James B. Norman Administrative Judge Member, Appeal Board