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ISCR 06-12930.a1: Guideline F security clearance appeal, granted (2008) · CASE

ISCR Case 06-12930.a1granted

Case headnote

ISCR Case No. 06-12930.a1

Mar 17, 2008· Hon. Jean E. Smallin· appeal

Summary

A defense contractor employee was granted a security clearance despite initial concerns under Guideline F (Financial Considerations). The applicant had numerous unsatisfied debts, primarily accrued during a period of unemployment. However, the applicant demonstrated reasonable efforts to address these financial issues.

These efforts included retaining a financial counseling agency to assist in resolving her debts and ceasing all credit card use. The judge's whole-person analysis supported a favorable decision, concluding that the applicant was making reasonable efforts to pay her debts and live within her means.

The appeal board affirmed this decision, noting the rational connection between the applicant's mitigating actions and the favorable outcome. The clearance was ultimately granted, with mitigating conditions AG ¶ 20(a), AG ¶ 20(b), and AG ¶ 20(c) applied.

Conditions referenced

Mitigating

AG ¶ 20(a)appliedThe Behavior Was Not Recent and the Applicant Has Not Incurred Substantial Debt in the Past Seven Years.
AG ¶ 20(b)appliedThe Applicant Has Made a Good Faith Effort to Repay Her Debts.
AG ¶ 20(c)appliedThe Applicant Has a Reasonable Plan for Debt Resolution and Has Taken Significant Actions to Implement That Plan.

Key rule quoted

“An applicant is not required to show that she has completely paid off her indebtedness, only that she has established a reasonable plan to resolve her debts and has taken significant actions to implement that plan.”
ISCR Case No. 04-09684 at 2-3 (App. Bd. Jul. 6, 2006)

Procedural posture

SOR issuedNov 29, 2006
Answer filed—
Hearing heldAug 6, 2007
Decision dateMar 17, 2008

Cite for

Reasonable Efforts to Resolve Debts Under Guideline F
Whole-person Analysis in Security Clearance Decisions
Mitigating Conditions Related to Financial Considerations

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 involved a security clearance decision where the Administrative Judge granted the Applicant a clearance despite concerns under Guideline F regarding financial considerations. The Department Counsel appealed, arguing that the Judge erred in her analysis and application of mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in her conclusions.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowMary E. Henry granted the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Rejected
Department Counsel argued that the Judge's application of Financial Considerations Mitigating Conditions was arbitrary, capricious, and contrary to law.
Judge mis-weighed or ignored evidence, raised by the Government (Department Counsel)Rejected
Department Counsel contended that the Judge erred in concluding that the Government had failed to meet its burden of production regarding certain of Applicant’s debts.
Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Rejected
Department Counsel claimed that the Judge's whole-person analysis was arbitrary, capricious, and contrary to law.

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 no harmful error in the Judge's decision and affirmed the favorable security clearance decision based on the whole-person analysis and the reasonable efforts made by the Applicant to resolve her debts.

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

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 Judge’s whole person analysis concludes that Applicant is making reasonable efforts to pay her debts off and live within her means. There is a rational connection between the facts found and the favorable decision. Favorable decision affirmed. CASENO: 06-12930.a1 DATE: 03/17/2008 DATE: March 17, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-12930

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Ray T. Blank, Jr., Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 29, 2006, 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 6, 2007, after the hearing, Administrative Judge Mary E. Henry granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raises the following issues on appeal: whether the Judge erred in concluding that the Government had failed to meet its burden of production regarding certain of Applicant’s debts; whether the Judge’s application of Financial Considerations Mitigating Conditions was arbitrary, capricious, and contrary to law; and whether the Judge’s whole-person analysis was arbitrary, capricious, and contrary to law. Finding no harmful error, we affirm the Judge’s decision. The Judge found that Applicant, an employee of a defense contractor, has numerous unsatisfied debts. Much of this debt originated during periods of unemployment in the 1990s. Applicant has not incurred substantial debt or unpaid loans in the past seven years. In addition, she no longer uses credit cards, paying cash instead. She has retained the services of a financial counseling agency to assist her in resolving her debt problems. The Board has examined the Judge’s decision in light of the record as a whole. Department Counsel argues that the Judge’s application of Guideline F mitigating conditions was error, given the ongoing nature of the debts and Department Counsel’s view that Applicant has not approached debt resolution in a reasonable manner. The Board notes that an applicant is not required to show that she has completely paid off her indebtedness, only that she has established a reasonable plan to resolve her debts and has “taken significant actions to implement that plan.” ISCR Case No. 04- 09684 at 2-3 (App. Bd. Jul. 6, 2006). In this case, the Judge gave Applicant partial credit under the mitigating conditions as to the evidence she provided. It is the Judge’s whole-person analysis, which concludes that Applicant is making reasonable efforts to pay her debts off and to live within her means, that constitutes “a rational connection between the facts found” and her favorable decision. Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Therefore, even if individual mitigating conditions do not per se justify the grant of a security clearance to Applicant, the Board concludes that, on the facts of this case, the Judge’s favorable security clearance decision is sustainable based on her whole-person analysis. The Board need not agree with a judge’s decision in order to find it sustainable. ISCR Case No. 06-23881 at 2 (App. Bd. Nov. 2, 2007). Any error in the Judge’s conclusion regarding the Government’s burden of production is harmless. See ISCR Case No. 02-29143 at 3 (App. Bd. Jan. 12, 2005). Accordingly, the Judge’s favorable decision is neither arbitrary, capricious, nor contrary to law.

ORDER

The Judge’s favorable security clearance decision 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