ISCR Case No. 22-01861

_______________________________________________ ) In the matter of: )

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ISCR Case No. 22-01861

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) 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 29, 2024

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Christopher Snowden, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 18, 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 Decision on the written record. She was sent the Government’s File of Relevant Material (FORM) to which she provided a response. On November 24, 2023, after considering the record, Defense Office of Hearings and Appeals Administrative Judge Charles C. Hale concluded that it is not clearly consistent with the national interest to grant Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged 22 financial concerns including 20 consumer debts totaling approximately $200,000, a 2002 Chapter 7 bankruptcy, and a Federal tax delinquency of approximately $25,000 for tax years 2019 and 2021. In responding to the SOR, Applicant admitted all allegations, with explanation. Her response to the FORM provided additional information about

the status of her finances. Applicant asserted that her delinquencies stemmed from a job-related move from Virginia to Hawaii and restraints imposed by the Covid-19 pandemic. She did not provide, however, any evidence explaining how any of the specific debts were related to these circumstances. The Judge found in favor of Applicant as to the tax delinquency (¶ 1.v) and five credit card debts on which Applicant was an authorized user but not financially liable (¶¶ 1.f, 1.g, 1.h, 1.i, 1.q). He also found that three other debts and the bankruptcy had been mitigated. (¶¶ 1.a, 1.j. 1.m, 1.u). The remainder of the debts, totaling over $177,000, were found to be unmitigated.1 On appeal, Counsel for Applicant first challenges several of the Judge’s factual findings as “wholly unsupported by the record.” Appeal Brief at 10. As we have repeatedly explained, there is a difference between errors in a judge’s findings of fact and errors in the conclusions drawn therefrom. See ISCR Case No. 21-02121 at 3 (App. Bd. Dec. 19, 2023). Applicant’s purported factual errors are simply challenges to the Judge’s weighing of the evidence, which is addressed more fully below. Applicant next contends that the Judge did not adequately consider the circumstances surrounding the accrual of her delinquencies or her efforts to address her debts through a debt resolution firm. For example, she argues that the Judge erred in failing to apply mitigating condition AG ¶ 20(d), which affords mitigation when the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts, based on the finding that Applicant had not established a track record of debt payments. Appeal Brief at 16 (citing Decision at 9). She contends that she had established a track record of responsibly addressing her debts despite the fact that they remained unpaid and were charged off. A security clearance adjudication is not a proceeding aimed at collecting an applicant’s debts. Rather, it is a proceeding aimed at evaluating an applicant’s judgment, reliability, and trustworthiness. See, e.g., ISCR Case No. 07-08049 at 5 (App. Bd. Jul. 22, 2008). The scope of Guideline F encompasses not only an Applicant’s current financial situation, but also extends to his or her financial history. Applicant’s arguments that “the Adjudicative Guidelines don’t require [her] to demonstrate a ‘track record,’” and that what constitutes a track record is “entirely vague” are without merit. Appeal Brief at 16. In a Guideline F case, the Board has held that until an applicant has a “meaningful financial track record it cannot be said as a matter of law that he has initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.” ISCR Case No. 05-01920 at 5 (App. Bd. Mar. 1, 2007). The concept of “‘meaningful track record’ necessarily includes evidence of actual debt reduction through payment of debts.” Id. Payment agreements alone amount to promises to pay in the future, which are “not a substitute for a track record of paying debts in a timely manner and otherwise acting in a financially responsible manner.” ISCR Case No. 19-01599 at 3 (App. Bd. Jan. 15, 2020). Although Applicant engaged the services of a 1 The Administrative Judge found that mitigating condition AG ¶ 20(b) partially applied to the debts alleged in ¶¶ 1.k and 1.l, but that the debts were ultimately not mitigated under AG ¶ 20(d) because resolution of the debts “occurred only because of legal action against [Applicant] by the creditor.” Decision at 9. These debts are not addressed in the Formal Findings; however, based upon the narrative discussion, it is clear that these allegations were found against Applicant and that the omission in the Formal Findings is a harmless typographical error. See, e.g., ISCR Case No. 05-02802 at 4 (App. Bd. Sep. 10, 2007).

debt firm that itself went into bankruptcy and subsequently retained legal counsel to help address her debts, by close of the record in this matter, she had voluntarily resolved only two accounts totaling approximately $2,500 (¶¶ 1.a and 1.j) and was making voluntary payments on only two others (¶¶ 1.m and 1.v). The Judge addressed Applicant’s circumstances and efforts in his decision and reasonably concluded she had not established a track record of repayment. In essence, Applicant is advocating for an alternative weighing of the evidence. 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 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. 7, 2007). Moreover, Applicant’s arguments fail to rebut the presumption that the Judge considered all of the record evidence. The mere presence of some favorable or mitigating evidence does not require the Judge to make an overall favorable determination in the face of disqualifying conduct such as Applicant’s. See ISCR Case No. 04-08975 at 2 (App. Bd. Aug. 4, 2006). The Judge’s conclusion that Applicant had not demonstrated a track record of debt resolution sufficient to mitigate the concerns arising from his financial problems is sustainable. 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).

The decision is AFFIRMED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: James B. Norman James B. Norman Administrative Judge Member, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board