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ISCR Case 06-23894.a1 — CASE

ISCR Case 06-23894.a1denied

Case Headnote

ISCR Case No. 06-23894.a1

Mar 6, 2008· Hon. Jean E. Smallin· appeal

Summary

This security clearance application was denied under Guideline F (Financial Considerations) due to significant and ongoing financial issues. The applicant, representing himself, faced concerns primarily related to a lengthy history of failing to meet financial obligations.

Specifically, at the time of the hearing, the applicant still owed approximately $15,000 across two charged-off debts. The judge determined that these financial problems were serious and persistent, raising security concerns.

While the applicant presented some mitigating evidence, it was deemed insufficient to overcome the government's concerns regarding his financial responsibility. Consequently, the security clearance was denied, a decision later affirmed by the appeal board.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20(a)raisedThe Conditions That Resulted in the Financial Problems Were Beyond the Applicant's Control.The judge acknowledged the applicant's arguments regarding circumstances beyond his control but found them insufficient.
AG ¶ 20(c)raisedThe Applicant Has Made Good-faith Efforts to Resolve His Financial Problems.The judge considered the applicant's efforts but determined they did not mitigate the ongoing financial issues.

Key Rule Quoted

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

Procedural Posture

SOR issuedMar 15, 2007
Answer filed—
Hearing heldOct 31, 2007
Decision dateMar 6, 2008

Cite For

Ongoing Financial Issues Under Guideline F
Insufficient Mitigating Evidence to Overcome Disqualifying Conditions
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 involved a denial of a security clearance based on financial considerations under Guideline F. The Applicant argued that the Judge erred in not sufficiently weighing mitigating evidence related to his financial difficulties. The Board affirmed the Judge's decision, finding no harmful error in the assessment of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowErin C. Hogan — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge did not give sufficient weight to mitigating evidence regarding his financial situation.

Why the Board ruled this way

The Board found that the Judge reasonably concluded that the Applicant's financial problems were ongoing and that the mitigating evidence presented was insufficient to overcome the government's security concerns.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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: At the time of the hearing Applicant still owed $15,000 on two charged-off debts. The Judge could reasonably conclude Applicant’s financial problems were still ongoing. Adverse decision affirmed. CASENO: 06-23894.a1 DATE: 03/06/2008 DATE: March 6, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-23894

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Judge found in favor of Applicant as to SOR allegations 1.a, 1.b, 1.c, and 1.f. Those favorable findings are not at issue on appeal. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 15, 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 a hearing. On October 31, 2007, after the hearing, Administrative Judge Erin C. Hogan 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 erred by concluding that the security concerns raised under Guideline F had not been mitigated. 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 showed that Applicant’s indebtedness had resulted in part from circumstances beyond his control (injuries and underemployment) and that he had made a good-faith effort to resolve his financial problems.1 Applicant’s arguments do not demonstrate that the Judge erred. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. 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. See, e.g., ISCR Case No. 06-23384 at 3 (App. Bd. Nov. 23, 2007). Thus, 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). 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. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge found that Applicant had a lengthy and serious history of not meeting financial obligations. At the time of the hearing, Applicant still owed approximately $15,000 on two charged-off debts. 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 mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions. She gave Applicant partial credit under the relevant mitigating conditions and found in his favor as to four of the six SOR allegations. However, she reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome all of 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 (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: 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