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ISCR Case 06-16376.a1 — CASE

ISCR Case 06-16376.a1denied

Case Headnote

ISCR Case No. 06-16376.a1

deniedAug 28, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant representing herself was denied a trustworthiness designation under Guideline F (Financial Considerations) due to significant financial issues. The initial decision cited Disqualifying Conditions F.1 and F.2, indicating a history of not meeting financial obligations and an inability or unwillingness to satisfy debts.

While Mitigating Conditions F.3 and F.4 were applied, suggesting the financial problems were not recent or were due to circumstances beyond the applicant's control, these were insufficient to overcome the concerns. The judge determined that the applicant's favorable job performance and lack of a criminal record did not adequately mitigate the financial problems.

The appeal board affirmed the denial, emphasizing that a whole-person analysis, which considers both on-duty and off-duty conduct, is crucial in trustworthiness evaluations. Ultimately, the board concluded that the financial concerns were significant enough to warrant the denial, despite other positive aspects of the applicant's record.

Why the Applicant Was Denied

The applicant's financial problems were deemed significant and raised trustworthiness concerns under Guideline F.
The judge found that the applicant's favorable job performance and absence of a criminal record did not mitigate the financial issues.
The appeal board emphasized the importance of a whole-person analysis, which considers both on-duty and off-duty conduct.

Conditions Referenced

Disqualifying

F.1raisedInability to Satisfy Debts
F.2raisedDelinquent Accounts

Mitigating

F.3rejectedThe Conditions That Led to the Financial Problems Were Beyond the Applicant's ControlThe judge found that the mitigating evidence was insufficient to overcome the trustworthiness concerns.
F.4rejectedThe Applicant Has Made Efforts to Resolve Financial IssuesThe judge determined that the applicant's efforts did not sufficiently mitigate the concerns.

Key Rule Quoted

“The legality of an applicant’s conduct and circumstance does not preclude a Judge from considering whether they raise trustworthiness concerns.”
— Cf., ISCR Case No. 04-08623 at 5 (App. Bd. July 29, 2005).

Procedural Posture

SOR issuedNov 3, 2006
Answer filed—
Hearing heldFeb 28, 2007
Decision dateAug 28, 2007

Cite For

Trustworthiness Concerns Under Guideline F Due to Financial Issues
Whole-person Analysis in Trustworthiness Determinations
Insufficient Mitigation of Financial Problems Despite Favorable Job Performance

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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline F DIGEST: The legality of an applicant’s conduct and circumstances does not preclude a Judge from considering whether they raise trustworthiness concern. The Directive presumes there is a nexus or rational connection between proven conduct under any guideline and an applicant’s trustworthiness eligibility. Adverse decision affirmed. CASENO: 06-16376.a1 DATE: 08/28/2007 DATE: August 28, 2007 In Re: ------------ Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 06-16376

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 In her brief, Applicant also makes statements as to her ongoing efforts to resolve her financial problems. The Board may not consider new evidence on appeal. See Directive ¶ E3.1.29. Accordingly, we may not consider Applicant’s additional explanations, and they do not demonstrate error on the part of the Judge. automated information systems in ADP-I/II/III sensitivity positions for Applicant. On November 3, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—trustworthiness 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 February 28, 2007, after the hearing, Administrative Judge Marc E. Curry 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’s adverse trustworthiness determination is arbitrary, capricious, or contrary to law. Applicant argues that the Judge erred in concluding that the Applicant’s financial problems raised trustworthiness concerns raised under Guidelines F. She also argues that the Judge gave insufficient weight to the favorable evidence in the record, particularly her outstanding job performance and the fact that she has no criminal record. Applicant’s arguments do not demonstrate that the Judge erred. The legality of an applicant’s conduct and circumstance does not preclude a Judge from considering whether they raise trustworthiness concerns. Cf., ISCR Case No. 04-08623 at 5 (App. Bd. July 29, 2005). The Directive presumes there is a nexus or rational connection between proven conduct under any of its Guidelines and an applicant’s trustworthiness eligibility. Cf., ISCR Case No. 02-28935 at 3-4 (App. Bd. June 28, 2005). The federal government need not wait until an applicant actually mishandles or fails to properly handle sensitive information before it can deny or revoke access to such information. See, e.g., ADP Case No. 06-09293 at 2 (App. Bd. June 6, 2007). Trustworthiness determinations are not limited to consideration of an applicant's job performance or conduct during duty hours, and off-duty conduct can be relevant in assessing an applicant's trustworthiness eligibility. ADP Case No. 06-07581 at 2 (App. Bd. May 17, 2007). An applicant with good or exemplary job performance may engage in conduct that has negative trustworthiness implications. See, e.g., ADP Case No. 06-09293 at 2 (App. Bd. June 6, 2007). The Directive's Guidelines set forth a variety of examples of off-duty conduct and circumstances which are of trustworthiness concern to the government and mandate a whole-person analysis to determine an applicant's trustworthiness eligibility. A whole-person analysis is not confined to the workplace. Id. 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., 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 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 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 reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s trustworthiness 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., ADP Case No. 06-07581 at 2 (App. Bd. May 17, 2007). Given the record that was before him, the Judge’s ultimate unfavorable trustworthiness determination under Guideline F is sustainable.

ORDER

The determination of the Judge denying Applicant access to automated information systems in ADP I/II/II sensitivity positions is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board