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ISCR Case 06-00375.a1 — CASE

ISCR Case 06-00375.a1denied

Case Headnote

ISCR Case No. 06-00375.a1

deniedOct 24, 2007· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a trustworthiness designation under Guideline F (Financial Considerations) due to a history of financial difficulties. The appeal board affirmed the administrative judge's decision, finding that the applicant's ongoing financial problems and significant outstanding debts were insufficiently mitigated.

Disqualifying conditions under AG ¶ 20 were raised, while mitigating conditions under AG ¶ 21 were considered. However, the judge determined that the applicant had a long history of not meeting financial obligations.

At the time of the decision, the applicant still had significant outstanding debts, and his financial problems were found to be ongoing and not sufficiently mitigated. Despite the applicant's arguments that his debts were due to circumstances beyond his control, the denial was upheld.

Why the Applicant Was Denied

The applicant had a long history of not meeting financial obligations.
At the time of the decision, the applicant still had significant outstanding debts.
The judge found that the applicant's financial problems were ongoing and not sufficiently mitigated.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge reasonably explained why the evidence presented in mitigation was insufficient to overcome the government's trustworthiness concerns.

Key Rule Quoted

“The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case.”
— ADP Case No. 05-03939 at 2 (App. Bd. Sep. 1, 2006)

Procedural Posture

SOR issuedAug 31, 2006
Answer filed—
Hearing heldMay 23, 2007Applicant requested decision on the written record.
Decision dateOct 24, 2007

Cite For

Affirmation of the Administrative Judge's Decision on Financial Considerations Under Guideline F
Insufficient Mitigation of Ongoing Financial Problems
The Standard of Substantial Evidence in Administrative Review

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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 Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence such evidence as a reasonable mind might accept to support such a conclusion in light of all the contrary record evidence. In this case the Judge found that Applicant had a history of not meet financial obligation which extended over many years. Adverse decision affirmed. CASENO: 06-00375.a1 DATE: 10/24/2007 DATE: October 24, 2007 In Re: ------------ Applicant for ADP I/II/III Position ) ) ) ) ) ) ) ) ADP Case No. 06-00375

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) proposed to deny or revoke access to automated information systems in ADP-I/II/III sensitivity positions for Applicant. On August 31, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that Applicant argues that the debts listed in SOR paragraphs 1.band 1.cwere charged off in September 2002 rather than in September 2001. He also argues that in his response the government’s File of Relevant Material, he explained the conflict between statements made in his Public Trust Position Application and his Answer to the SOR. decision—trustworthiness concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On May 23, 2007, after considering the record, Administrative Judge Joseph Testan denied Applicant’s request for a trustworthiness designation. 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 the trustworthiness concerns under Guideline F had not been mitigated. Applicant argues that the Judge erred in concluding that the trustworthiness concerns raised by his history of financial difficulties had not been mitigated because his indebtedness was due to a circumstance beyond his control, loss of employment. He also argues that the Judged erred with respect to several of his findings. The Board does not find Applicant’s arguments persuasive. The Board’s review of a Judge’s findings 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, (1966). 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 trustworthiness 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 trustworthiness concern are sustainable. The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply 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., ADP Case No. 05-03939 at 2 (App. Bd. Sep. 1, 2006). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable trustworthiness determination. 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. In this case, the Judge found that Applicant had a history of not meeting financial obligations which extended over many years. At the time the case was submitted for decision, Applicant still had significant outstanding debts. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing. See, e.g., ADP Case No. 05-16601 at 2 (App. Bd. Jul. 2, 2007). The Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating factors. He reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s trustworthiness concerns. 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., ADP Case No. 03-14873 at 2 (App. Bd. Sep. 28, 2006). The Board does not review a case de novo. Given the record that was before him, the Judge’s ultimate unfavorable trustworthiness determination is sustainable.

ORDER

The decision of the Judge denying Applicant access to automated information systems in ADP-I/II/III sensitivity positions is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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