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ISCR Case 06-22871.a1 — CASE

ISCR Case 06-22871.a1denied

Case Headnote

ISCR Case No. 06-22871.a1

Jan 24, 2008· Hon. William S. Fields· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct). The appeal board upheld this denial, citing a history of financial irresponsibility and a felony conviction.

Specifically, the applicant failed to pay child support until his wages were garnished in 2002. The judge found his testimony regarding his knowledge of the child support order to be not credible. Additionally, the applicant had a prior felony conviction for writing a bad check, which was subsequently pled down to a misdemeanor.

These issues, identified as Disqualifying Conditions J1 and F1, were significant factors in the decision. The board concluded that the applicant had not mitigated the concerns raised by his financial conduct and criminal history, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
F1raisedFinancial Considerations

Key Rule Quoted

“Any error regarding by the Judge regarding Applicant’s child support payments is harmless given the totality of the record evidence.”

Procedural Posture

SOR issuedJan 30, 2007
Answer filed—
Hearing heldJul 30, 2007
Decision dateJan 24, 2008

Cite For

Denial Based on Failure to Pay Child Support Under Guideline F
Impact of Prior Felony Convictions Under Guideline J
Credibility Assessments in Security Clearance Cases

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 denial of a security clearance based on financial considerations and criminal conduct. The applicant argued that the Judge's findings were not based on substantial evidence and that the application of whole person factors was arbitrary. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge's factual findings are not based upon substantial evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's application of the relevant whole person factors is 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 findings and affirmed the adverse decision based on substantial evidence and a sustainable whole person analysis.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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; Guideline J DIGEST: Any error regarding by the Judge regarding Applicant’s child support payments is harmless given the totality of the record evidence. Adverse decision affirmed. CASENO: 06-22871.a1 DATE: 01/24/2008 DATE: January 24, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-22871

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 January 30, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 30, 2007, after the hearing, Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether certain of the Judge’s factual findings are based upon substantial evidence; and whether the Judge’s application of the relevant whole person factors is arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge made the following findings of fact: Applicant was charged in 1994 with a felony count of writing a bad check. He entered a plea of guilty to a misdemeanor, receiving a sentence of 60 days confinement, with 55 days suspended. Applicant was ordered to pay restitution, but he did not do so until 2002. In 1995 Applicant was divorced from his wife. The following year she obtained a court order for child support from Applicant. Applicant did not begin paying until his wages were garnished in 2002. He stated at the hearing that he did not know about the child support order until the garnishment action. The Judge concluded that Applicant’s testimony on this point was not credible. The Board concludes that the Judge’s findings are based upon substantial record evidence. See Directive ¶ E3.1.32.1; Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). Any error in stating that Applicant’s child support payments have been made through garnishment since 2002 is harmless, given the totality of the record evidence. Furthermore, we have examined the Judge’s whole person analysis and conclude that it is sustainable on the record. To the extent that Applicant’s brief contains new evidence, we cannot consider it. See Directive ¶ E3.1.29. See also ISCR Case No. 06-17209 at 2 (App. Bd. Nov. 14, 2007).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed; Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Wiliam S. Fields

William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board