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ISCR Case 05-02471.a1 — CASE

ISCR Case 05-02471.a1denied

Case Headnote

ISCR Case No. 05-02471.a1

Apr 11, 2007· Hon. Jean E. Smallin· appeal

Summary

This security clearance application was denied under Guideline F (Financial Considerations) due to a history of financial irresponsibility. The applicant, representing himself, faced disqualifying conditions under Adjudicative Guideline (AG) ¶ 19, primarily stemming from a lengthy record of failing to meet financial obligations and a previous bankruptcy discharge of indebtedness.

While the applicant presented mitigating evidence under AG ¶ 20(a), (b), and (c), this was deemed insufficient to overcome the substantial evidence of ongoing financial issues. A key factor in the denial was that the applicant only established a repayment plan for outstanding debts after the initial hearing, indicating a lack of proactive effort to resolve financial concerns.

The appeal board upheld the denial, concluding that the applicant's mitigating evidence did not adequately address the pattern of financial instability. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20(a)rejectedThe Behavior Was Not RecentThe applicant's financial issues were ongoing and not mitigated by recent actions.
AG ¶ 20(b)rejectedThe Applicant Has Received CounselingThe evidence of financial counseling was insufficient to mitigate the concerns.
AG ¶ 20(c)rejectedThe Applicant Has a Good Faith Effort to Repay DebtsThe repayment plan was established after the hearing and did not demonstrate a long-term commitment.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural Posture

SOR issuedNov 9, 2005
Answer filed—
Hearing heldAug 8, 2006
Decision dateApr 11, 2007

Cite For

Insufficient Mitigation of Financial Concerns Under Guideline F
The Weight of Evidence in Security Clearance Decisions
The Discretionary Nature of Applying Mitigating Conditions

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 erred in not sufficiently weighing mitigating evidence and in making certain findings. The Board affirmed the Judge's decision, finding no harmful error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowBarry M. Sax — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge did not give sufficient weight to mitigating evidence regarding his financial problems.
Erroneous finding of fact — raised by the applicantRejected
Applicant contended that the Judge erred with respect to one of his findings and that there are internal inconsistencies with respect to several others.

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's findings were based on substantial evidence and that any errors were harmless. The Judge's conclusions regarding the lack of mitigation of financial concerns were not arbitrary or capricious.

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 are based on substantial record evidence. The favorable evidence cited by Applicant is not sufficient to demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Adverse decision affirmed. CASENO: 05-02471.a1 DATE: 04/11/2007 DATE: April 11, 2007 In Re: -------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-02471

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 9, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 8, 2006, after the hearing, Administrative Judge Barry M. Sax denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred by concluding that the security concerns raised under Guideline F had not been mitigated. Applicant argues that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant mitigating evidence which he contends demonstrates that his financial problems were due to circumstances beyond his control, and that he has now received financial counseling and established a repayment plan for his debts. Applicant also argues that the Judge erred with respect to one of his findings and there are internal inconsistencies with respect to several others. The Board does not find Applicant’s arguments persuasive. We have considered the challenged findings in light of the record and conclude that they are based on substantial evidence. To the extent that there is error in the Judge’s findings we conclude that it is harmless. Applicant has not met his burden of demonstrating that the Judge’s material findings with respect to his conduct of security concern do not reflect a reasonable or plausible interpretation of the record evidence. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. Likewise, Applicant has not met his burden of demonstrating that the Judge erred in concluding that the financial considerations allegations had not been mitigated. Although Applicant strongly disagrees with the Judge’s conclusions, he has not established that those conclusions are arbitrary, capricious, or contrary to law. See Directive ¶ E3.1.32.3. In this case, the Judge made sustainable findings that Applicant had a lengthy history of not meeting financial obligations, that Applicant had previously had indebtedness discharged in bankruptcy, and that Applicant had only established his current repayment plan subsequent to the hearing. In light of the foregoing, the Judge could reasonably conclude that the security concerns raised by Applicant’s financial problems had not been mitigated. See, e.g., ISCR Case No. 04- 09248 at 2 (App. Bd. Jan. 17, 2007); ISCR Case No. 03-13768 at 4 (App. Bd. June 16, 2005). The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them applies to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some 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 the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. 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. He articulated a rational basis for not applying any mitigating conditions in this case, and reasonably explained why the evidence which the 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 Administrative 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). Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guidelines F is sustainable. Thus, the Judge did not err in denying Applicant a clearance.

ORDER

The decision of the Judge denying Applicant a 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