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ISCR Case 06-23607.a1 — CASE

ISCR Case 06-23607.a1denied

Case Headnote

ISCR Case No. 06-23607.a1

Apr 16, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline F (Financial Considerations) due to a history of financial delinquency and ongoing unresolved debts. The applicant's financial issues were deemed a disqualifying condition under Adjudicative Guideline (AG) ¶ 19.

The applicant presented mitigating evidence, which was considered under AG ¶ 20. However, the judge found this evidence insufficient to alleviate the government's security concerns. At the time of the decision, the applicant still had delinquent debts and was actively working to resolve his financial problems, indicating that the issues were not fully mitigated.

The denial was based on the applicant's lengthy and serious history of failing to meet financial obligations, coupled with the fact that these problems remained unresolved. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe judge found the limited mitigating evidence insufficient to overcome the disqualifying conduct.

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedMay 2, 2007
Answer filed—Applicant requested a decision based on the written record.
Hearing heldJan 16, 2008
Decision dateApr 16, 2008Appeal board affirmed the decision.

Cite For

Denial of Security Clearance Due to Unresolved Financial Issues
Insufficient Mitigating Evidence Under Guideline F
Burden of Proof Shifts to Applicant After Government Raises Security Concerns

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 due to ongoing financial issues under Guideline F. The Applicant argued that the Judge's decision was arbitrary and did not adequately consider his mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowKathryn M. Braeman — denied the clearance (split findings)

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 adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge reasonably concluded that Applicant's financial problems were ongoing and that the evidence presented did not sufficiently mitigate the security concerns raised.

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

Michael Y. Ra’anan — Chair
Michael D. Hipple
William S. Fields

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: At the time the case was submitted for decision Applicant still had delinquent debts. The Judge could reasonably conclude Applicant’s financial problems were still ongoing. Adverse decision affirmed CASENO: 06-23607.a1 DATE: 04/16/2008 DATE: April 16, 2008 In Re: -------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-23606

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 May 2, 2007, 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 the case be decided upon the written record. On January 16, 2008, after considering the record, Administrative Judge Kathryn M. Braeman denied Applicant’s request for a security clearance. 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 unfavorable security clearance decision is arbitrary, capricious, or contrary to law. Applicant argues that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence which he contends shows that he has made sufficient progress in settling his outstanding debts to justify the granting of a security clearance. The Board does not find Applicant’s argument persuasive. Applicant requested that his case be decided upon the written record. He filed a four-page response to the government’s file of relevant material (FORM) which indicated that he had paid off the debts listed in SOR paragraphs 1(b) and 1(c). The Judge found in favor of Applicant as to those two debts. On appeal, Applicant presented new evidence which indicates that he is working with a law firm to settle his remaining debts and has allocated $4,500 for that purpose. The Board may not consider Applicant’s new evidence on appeal. See Directive ¶ E3.1.29. Its submission does not demonstrate error on the part of the Judge. See, e.g., ISCR Case No. 06-00799 at 2 (App. Bd. Apr. 16, 2007). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. 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. 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 lengthy and serious history of not meeting financial obligations. At the time the case was submitted for decision, Applicant still had delinquent debts and was still in the process of resolving his financial problems. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007). The Judge weighed the limited mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions and whole person factors. The Judge found in favor of Applicant with respect to some of the SOR allegations. However, the Judge reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome all the government’s security 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., ISCR Case No. 06-11172 at 2-3 (App. Bd. Sep. 4, 2007). Given the record that was before her, 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: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board