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ISCR Case ISCR Case No. 23-01434 — CASE

ISCR Case ISCR Case No. 23-01434denied

Case Headnote

ISCR Case No. ISCR Case No. 23-01434

May 7, 2024· Hon. Gregg A. Cervi· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline F (Financial Considerations) due to significant financial issues. The applicant had 33 delinquent debts totaling approximately $11,800 and a Chapter 7 bankruptcy discharged in 2014. These conditions were cited as disqualifying factors.

The applicant appealed the denial, claiming factual inaccuracies and insufficient consideration of mitigating evidence. However, the Appeal Board affirmed the original decision, finding no harmful error in the initial determination.

Ultimately, the applicant's security clearance was denied, as he did not successfully demonstrate harmful error in the appeal process to overturn the initial decision based on his financial history.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Procedural Posture

Decision DateMay 7, 2024

Cite For

Denial of Security Clearance Due to Financial Concerns Under Guideline F
Affirmation of Denial on Appeal Despite Claims of Factual Errors
Insufficient Evidence of Mitigating Circumstances Leading to Denial.

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 was filed by the applicant after the Defense Office of Hearings and Appeals denied his security clearance based on financial considerations. The applicant argued that the Judge made factual errors and failed to consider mitigating evidence. The Board affirmed the decision, finding no harmful error that would change the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to give appropriate weight to a spreadsheet submitted in mitigation and mischaracterized his financial status.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge's conclusions were arbitrary and capricious.
Judge bias or partiality — raised by the applicantRejected
Applicant alleged bias on the part of the Judge based on remarks made about a previous applicant.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant pointed out a factual error regarding the omission of one of his children, which the Board found harmless.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which was sustainable on the record. The Board also noted that the Judge's factual error regarding the omission of one child was harmless and did not affect the outcome.

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

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. 23-01434

)

) 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: May 7, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On July 28, 2023, DoD issued a Statement of Reasons (SOR) advising Applicant of the basis of 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 June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On March 7, 2024, after conducting a hearing, Defense Office of Hearings and Appeals Administrative Judge Richard A. Cefola denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged that Applicant has 33 delinquent debts totaling about $11,800, and a Chapter 7 Bankruptcy discharged in 2014. The Judge found against Applicant’s on all of the SOR allegations. In his appeal brief, Applicant points out factual errors in the Judge’s decision and asserts that the Judge failed to consider relevant evidence in mitigation. Consistent with the following, we affirm.

Judge’s Findings of Fact and Analysis Applicant is in his early-40sand has been employed by a defense contractor since May 2019. He is married and has three stepchildren. Applicant attributes his financial difficulties to a brief period of unemployment in 2019. He admitted to all of the SOR allegations. Applicant has significant past-due indebtedness. Although he was unemployed in 2019, his indebtedness is ongoing. He has a history of delinquencies, including a 2014 Chapter 7 bankruptcy discharge of earlier debts, and has not demonstrated that further financial problems are unlikely. No mitigating conditions apply.

DISCUSSION

In his appeal brief, Applicant claims that the Judge erred in certain factual findings with regard to his background, argues for reconsideration of certain efforts he has made to resolve debts, includes additional argument as to the current status of some debts, and raises an allegation of bias. In deciding whether the Judge's rulings or conclusions are erroneous, we will review the decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. ISCR Case No. 97-0435 at 3 (App. Bd. Jul. 14, 1998). We agree that the Judge made a factual error in omitting one of Applicant’s children, but the error is harmless as it does not likely affect the outcome of the case. ISCR Case No. 19-01431 at 4 (App. Bd. Mar. 31, 2020). Applicant next asserts that the Judge erred by not giving appropriate weight to a spreadsheet he submitted in mitigation and that he inappropriately characterized Applicant’s financial status. Applicant also argues additional considerations for the whole-person analysis. 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 conclude that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. E.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Applicant has not established that the Judge committed harmful error. Our review of the record reflects that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which is sustainable on this record. We have often stated that 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. 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. As a general rule, an applicant is not required to be debt-free nor to develop a plan for paying off all debts immediately or simultaneously. E.g., ISCR

Case No. 09-08462 at 4 (App. Bd. May 31, 2011). However, an applicant must act responsibly given his or her circumstances and develop a reasonable plan for repayment, accompanied by concomitant conduct even if it may only provide for the payment of debts one at a time. ISCR Case No. 07-06482 at 3 (App. Bd. May 21, 2008). It is reasonable for a Judge to expect applicants to present documentation about the satisfaction of specific debts. ISCR Case No. 09-07091 at 2 (App. Bd. Aug. 11, 2010). Moreover, intentions to resolve financial problems in the future are not a substitute for a track record of debt repayment or other responsible approaches. ISCR Case No. 11-14570 at 3 (App. Bd. Oct. 23, 2013). Additionally, a debt that became delinquent several years ago is still considered recent because “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.” ISCR Case No. 15-06532 at 3 (App. Bd. Feb. 16, 2017). With regard to additional or clarifying evidence presented on appeal, the Appeal Board is prohibited from considering new evidence on appeal and does not review cases de novo. Directive ¶ E3.1.29. Finally, Applicant raises the possibility that the Judge was biased because of remarks he made about a previous Applicant’s “speech patterns” that made it difficult to understand him. The record is devoid of evidence of the pre-hearing discussion, and Applicant has not raised sufficient evidence of bias to warrant action in his case by the Appeal Board. Applicant has not established that the Judge committed harmful error. Our review of the record reflects that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which 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: James B. Norman James B. Norman Administrative Judge Member, Appeal Board