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ISCR 06-21819.a1: Guideline F security clearance appeal, denied (2009) · CASE

ISCR Case 06-21819.a1denied

Case headnote

ISCR Case No. 06-21819.a1

Aug 13, 2009· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to unmitigated financial concerns. The judge found that the applicant failed to provide sufficient evidence of payment for ten out of fourteen debts listed in the Statement of Reasons (SOR).

Despite the applicant's claims of efforts to resolve these debts, the judge concluded that the financial issues remained serious and unresolved, citing a lack of supporting evidence for debt resolution. While some mitigating evidence was presented, it was deemed insufficient to overcome the disqualifying conditions raised under Adjudicative Guideline (AG) ¶ 20.

The appeal board subsequently affirmed the judge's decision, determining that it was not arbitrary or capricious. The denial was upheld because the applicant's financial concerns were found to be unmitigated, as he did not adequately demonstrate resolution or payment for a significant portion of his outstanding debts.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge found the evidence in mitigation insufficient to overcome the government's security concerns.

Key rule quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedMar 12, 2009
Answer filed—Applicant requested a decision on the written record.
Hearing heldJun 17, 2009Decision made by Administrative Judge Martin H. Mogul.
Decision dateAug 13, 2009Appeal board affirmed the decision.

Cite for

Insufficient Evidence of Debt Resolution Under Guideline F
Unmitigated Financial Concerns Leading to Denial
Affirmation of Judge's Decision by Appeal Board as Not Arbitrary or Capricious

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 filed by the Applicant after the Administrative Judge denied his request for a security clearance based on financial concerns under Guideline F. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and properly reasoned.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings and conclusions were supported by substantial evidence and that the Judge properly weighed the evidence presented by the Applicant against the government's security concerns.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
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 found that there was no evidence of any payment on ten out of fourteen debts listed in the SOR and that the full amount of these debts was still owing. The Judge also found that while Applicant had begun the process of resolving the overdue debts, little evidence had been offered to establish that the debts had been resolved or even reduced. The Judge concluded that the financial concerns established in the case were unmitigated. The Judge’s findings and conclusions are supported by the evidence. Adverse decision affirmed. CASENO: 06-21819.a1 DATE: 08/13/2009 DATE: August 13, 2009 In Re: --------------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-21819

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se

FOOTNOTES

1 The SOR actually listed 16 debts, but the Judge found that two debts had been listed twice. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 12, 2009, 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 that his case be decided on the written record. On June 17, 2009, after considering the record, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. Some of Applicant’s assertions on appeal rely on matters not contained in the record below. As such, the assertions are based on new evidence. The Board cannot consider new evidence on appeal. Directive ¶ E3.1.29. The Judge found that there was no evidence of any payment on ten of fourteen overdue debts listed in the SOR,1 and that the full amount of these debts was still owing. The Judge also found that three other overdue debts had outstanding balances despite some evidence of payments, and one debt was disputed. The Judge additionally found that Applicant had been in contact with many of the creditors to work out methods for repayment. The Judge concluded that while Applicant had begun the process of resolving the overdue debts, little evidence had been offered to establish that any of the debts had been resolved or even reduced. The Judge also concluded that it is too soon to make a determination that Applicant will follow through on his agreements to resolve his debts. Therefore, the Judge found the financial concerns unmitigated. On appeal, Applicant argues that he has made every effort to show his willingness to satisfy his debts, and has made some reductions since 2005. He also states that conditions resulting in his financial problems were largely beyond his control, such as loss of employment, court expenses and a relationship separation. These assertions do not establish error on the part of the Judge. 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). A party’s’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. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He concluded that the evidence in mitigation was of insufficient strength to overcome the government’s security concerns. This conclusion is reasonably supported by the record. The Board does not review a case de novo. The favorable 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. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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 general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Therefore, the Judge’s ultimate unfavorable security clearance decision under Guideline F is sustainable. Order The decision of the Judge denying Applicant a security clearance 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