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ISCR Case 04-12761.a1 — CASE

ISCR Case 04-12761.a1denied

Case Headnote

ISCR Case No. 04-12761.a1

Mar 9, 2007· Hon. Jean E. Smallin· appeal

Summary

The applicant was denied a security clearance under Guideline F, Financial Considerations, due to a lengthy history of financial difficulties. These issues dated back to the early 1990s and remained a significant concern.

Despite the applicant's claims of resolving some debts, the judge found these assertions uncorroborated by sufficient evidence. Furthermore, the applicant had not established a budget or sought financial counseling to address the underlying issues.

The decision to deny the clearance was affirmed on appeal, emphasizing the applicant's persistent financial problems and the absence of a structured plan for resolution. The judge applied Disqualifying Condition AG ¶ 19 and found that Mitigating Condition AG ¶ 20 was not met.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe judge found the applicant's mitigating evidence insufficient to overcome the government's security concerns.

Key Rule Quoted

“An Administrative Judge is required to examine the relevant data and articulate a satisfactory explanation for the decision, including a ‘rational connection between the facts found and the choice made.’”
— Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

Procedural Posture

SOR issuedJul 20, 2005
Answer filed—
Hearing heldJun 30, 2006
Decision dateMar 9, 2007Appeal affirmed.

Cite For

Insufficient Evidence to Mitigate Financial Concerns Under Guideline F
Importance of Corroborating Claims of Debt Resolution
Long-standing Financial Difficulties as a Disqualifying Factor

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 from a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge did not perform a sufficient whole person analysis and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and adequately reasoned.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJohn Grattan Metz — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Whole-person analysis — raised by the applicantRejected
The Judge did not perform a sufficient whole person analysis.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's unfavorable decision is arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantRejected
The Judge's statement about new delinquent accounts is not supported by record evidence.

Why the Board ruled this way

The Board found that the Judge's findings of fact were supported by substantial evidence and that the Judge reasonably explained why the mitigating evidence was insufficient to overcome the government's security concerns.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Jean E. Smallin
William S. Fields
James E. Moody

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

SYNOPSIS

KEYWORD: Guideline F DIGEST: The challenged findings of fact are supported by substantial record evidence. The Judge reasonable explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Adverse decision affirmed. CASENO: 04-12761.a1 DATE: 03/09/2007 DATE: March 9, 2007 In Re: ------- SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-12761

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 20, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations), pursuant to Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Although this statement by the Judge appears in the Conclusions section of the decision, we are treating it as a factual finding for purposes of this appeal. FOR OFFICIAL USE ONLY When unredacted, this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies Applicant requested a hearing. On June 30, 2006, after the hearing, Administrative Judge John Grattan Metz, denied Applicant’s request for a security clearance. Applicant submitted a timely appeal pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge performed a sufficient whole person analysis; whether the Judge’s unfavorable decision is arbitrary, capricious, or contrary to law, in that Applicant had paid off most of his debts or, in one case, made payment arrangements; and whether the Judge’s statement that “Applicant adds new delinquent accounts even as he struggles to pay debts that are older” is not supported by record evidence. II. Whether the Record Supports the Administrative Judge’s Factual Findings

A. Facts The Judge made the following findings: Applicant has a history of financial difficulties dating back to the early 1990s. Although Applicant’s financial problems were exacerbated by his divorce, they predated that event. By March 2005, Applicant “had still not resolved [his] debts. In some instances, he had not yet been in contact with the creditors. In others, he claimed to have been in contact as long ago as August 2003, but did not follow up on his original contacts when the creditors did not respond.” Applicant had paid some of the debts listed in the SOR and provided evidence that he was attempting to settle some of the debts. However, Applicant’s claims that he was in active negotiation with creditors were not corroborated. After the hearing, Applicant did demonstrate that he had entered into settlement agreements with some of the creditors listed in the SOR. “Applicant testified that he had no budget and had undertaken no financial counseling. He claimed to have about $600 per month positive cash flow with which to address his debts.” B. Discussion The Appeal Board’s review of the Administrative Judge’s finding of facts is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966)). In evaluating the Administrative Judge’s finding, we are required to give deference to the Administrative Judge’s credibility determinations. Directive ¶ E3.1.32.1. The Board has examined the record and concludes that the challenged finding is supported by substantial evidence. FOR OFFICIAL USE ONLY When unredacted, this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies Whether the Record Supports the Administrative Judge’s Ultimate Conclusions. An Administrative Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Appeal Board may reverse the Administrative Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3. Our scope of review under this standard is narrow and we may not substitute our judgment for that of the Administrative Judge. We review matters of law de novo. In this case, the Judge found that Applicant had a lengthy history of not meeting financial obligations. At the time the case was submitted for decision, Applicant still had unpaid debts and had only recently taken action to resolve his financial problems. In light of the foregoing, the Judge reasonably concluded that Applicant’s financial problems were still ongoing. See ISCR Case No. 03-26213 at 2 (App. Bd. Aug. 23, 2006). The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions. The Judge found in favor of Applicant with respect to some of the SOR allegations. However, the Judge reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. June 29, 2005). A Judge is not required to discuss each and every piece of record evidence. See ISCR Case No. 02-29608 at 4 (App. Bd. Dec. 17, 2003). Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guideline F is sustainable. Thus, the Judge did not err in denying Applicant a clearance. FOR OFFICIAL USE ONLY When unredacted, this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board