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ISCR Case 07-01659.a1 — CASE

ISCR Case 07-01659.a1denied

Case Headnote

ISCR Case No. 07-01659.a1

Feb 22, 2008· Hon. Jean E. Smallin· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to a lengthy and serious history of not meeting financial obligations. The appeal board affirmed this denial, concluding that the applicant's financial problems remained unresolved.

At the time of the hearing, the applicant still had delinquent debts and was actively in the process of resolving these financial issues. However, the judge reasonably determined that these financial problems were ongoing, triggering disqualifying conditions under Adjudicative Guideline (AG) ¶ 20.

While mitigating conditions under AG ¶ 21 were considered, the board found the evidence presented by the applicant insufficient to outweigh the persistent financial concerns. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

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

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”
— ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003)

Procedural Posture

SOR issuedMay 25, 2007
Answer filed—
Hearing heldOct 18, 2007
Decision dateFeb 22, 2008

Cite For

Ongoing Financial Problems Under Guideline F
Insufficient Mitigating Evidence to Overcome Disqualifying Factors
The Weight of Evidence in Security Clearance Decisions

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 considerations under Guideline F. The applicant argued that the Judge did not adequately weigh his mitigating evidence. 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 belowJacqueline T. Williams — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — 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 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-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael D. Hipple
Jean E. Smallin
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: The Board does not consider new evidence on appeal. At the hearing Applicant still had delinquent debts. The Judge could reasonably conclude Applicant’s financial problems were ongoing. Adverse decision affirmed. CASENO: 07-01659.a1 DATE: 02/22/2008 DATE: February 22, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-01659

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 25, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the The Judge found in favor of Applicant with respect to SOR paragraphs 1.band 1.f. Those favorable findings are not at issue on appeal. 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 18, 2007, after the hearing, Administrative Judge Jacqueline T. Williams 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.1 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: (a) Applicant’s indebtedness had resulted from circumstances beyond his control—a divorce and serious medical problems, and (b) Applicant has been in the process of consolidating his debts and filing for a Chapter 13 bankruptcy. In support of his argument, Applicant provides documentation updating his financial situation, and attesting to his good character and work performance. Part of this submission relates to debts cited in SOR paragraphs which were resolved in Applicant’s favor and are not at issue on appeal. With respect to the balance of Applicant’s submission, his arguments do not demonstrate that the Judge erred. 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 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. 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 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 of the hearing, 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 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 reasonably explained why the evidence which the 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 Guidelines F is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, 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