Loading case…

ISCR 07-01979.a1: Guideline F security clearance appeal, granted (2008) · CASE

ISCR Case 07-01979.a1granted

Case headnote

ISCR Case No. 07-01979.a1

Apr 9, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This case concerns an applicant who, representing herself, sought a security clearance under Guideline F (Financial Considerations). The evaluation focused on two specific debts. One debt was successfully settled, resulting in a zero balance with the creditor. The second debt stemmed from an automobile accident, and the applicant demonstrated she was unaware of the outstanding balance until a later point.

The judges applied mitigating conditions FCMC 1, FCMC 2, and FCMC 3, concluding that the applicant's financial situation did not present a security risk. This determination was based on the resolution of one debt and the applicant's lack of prior knowledge regarding the second.

Ultimately, the Appeal Board affirmed the favorable decision, finding no error in the judge's conclusions. The Board determined that granting the security clearance was consistent with national security interests, and the clearance was GRANTED.

Conditions referenced

Mitigating

FCMC 1appliedThe Behavior Was Not Recent.
FCMC 2appliedThe Conditions That Resulted in the Financial Problems Were Beyond the Applicant's Control.
FCMC 3appliedThe Applicant Has Demonstrated a Good Faith Effort to Repay Debts.

Key rule quoted

“The Board need not agree with a Judge’s decision in order to find it sustainable.”
ISCR Case No. 06-23881 at 2 (App. Bd. November 2, 2007)

Procedural posture

SOR issuedJul 18, 2007
Answer filed—
Hearing heldDec 20, 2007
Decision dateApr 9, 2008

Cite for

Evaluation of Financial Considerations Under Guideline F
Application of Mitigating Conditions in Financial Cases
Affirmation of Favorable Decisions by the Appeal Board

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 Department Counsel after the Administrative Judge granted the Applicant a security clearance despite concerns under Guideline F (Financial Considerations). The Board reviewed the appeal and found no harmful errors in the Judge's conclusions, affirming the decision.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny granted the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Rejected
The Judge's application of the Financial Considerations Mitigating Conditions is arbitrary, capricious, and contrary to law.
Judge mis-weighed or ignored evidence, raised by the Government (Department Counsel)Rejected
The Judge erred in concluding that Applicant’s credit reports were insufficient to meet the Government’s burden of proof as to debt cited in the SOR.
Whole-person analysis, raised by the Government (Department Counsel)Rejected
The Judge’s whole-person analysis is unsupported by the totality of the record evidence.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and affirmed the favorable security clearance decision based on a satisfactory explanation for the conclusions reached.

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 Y. Ra’anan (Chair)
Jean E. Smallin
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 has articulated a satisfactory explanation for his conclusions. Favorable decision affirmed. CASENO: 07-01979.a1 DATE: 04/09/2008 DATE: April 9, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-01979

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Alison O’Connell, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 18, 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 decision on the written record. On December 20, 2007, after the hearing, Administrative Judge Claude R. Heiny granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge erred in concluding that Applicant’s credit reports were insufficient to meet the Government’s burden of proof as to debt cited in the SOR; whether the Judge’s application of the Financial Considerations Mitigating Conditions (FCMC) is arbitrary, capricious, and contrary to law; and whether the Judge’s whole-person analysis is unsupported by the totality of the record evidence. Finding no error, we affirm. The Judge found that Applicant had two debts, as alleged in the SOR. One, for $11,832.000, was for a credit card. Applicant settled this debt and currently has a zero balance with the creditor. A credit bureau report from February 2006 lists two accounts with the creditor in question, although three subsequent credit reports, including the most recent, do not list any monies owed to the creditor. The second debt alleged in the SOR arose from an automobile accident. Applicant had totaled the car, owing $7,000 on her loan. The insurance company offered her only salvage value, despite the car having a book value of $7,000. Applicant did not accept the offer of salvage value and assumed the insurance company had then paid off the full value of the car. Years later, she discovered that the insurance company had not paid off the balance of the car loan and that her credit report showed a charged-off debt of $4,306. As regards the first assignment of error, the Board concludes that, despite some language that would appear to suggest the opposite, the Judge has determined that the Government met its burden of production. Accordingly, his discussion of Applicant’s credit reports occurred in the context of evaluating the applicability of the possible mitigating conditions. Furthermore, the Board has examined the Judge’s decision in light of the record as a whole. The Judge has articulated “a satisfactory explanation for [his] conclusions, including a rational connection between the facts found” and his ultimate decision, both as to the application of Guideline F mitigating conditions and the whole-person analysis. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). The record supports the Judge’s conclusion that Applicant has met her burden of persuasion that it is “clearly consistent with the interests of the national security” for her to have a clearance. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). “The Board need not agree with a Judge’s decision in order to find it sustainable.” ISCR Case No. 06-23881 at 2 (App. Bd. November 2, 2007). Accordingly, the Board concludes that the Judge’s decision is not arbitrary, capricious, or contrary to law.

ORDER

The Judge’s favorable security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board