CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 07-03120.a1 — CASE

ISCR Case 07-03120.a1denied

Case Headnote

ISCR Case No. 07-03120.a1

Jan 30, 2008· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to significant financial issues and personal conduct concerns, specifically under Guidelines E (Personal Conduct) and F (Financial Considerations). The Board affirmed this denial, citing the applicant's extensive history of failing to meet financial obligations and providing false information on his security clearance application.

Disqualifying conditions included the applicant's lengthy and serious history of not meeting financial obligations and his provision of false information regarding his indebtedness. At the time of the hearing, the applicant still owed approximately $49,000 across 31 debts.

While mitigating conditions were considered, they were ultimately outweighed by the severity and persistence of the financial problems and the applicant's lack of candor. The Board concluded that the applicant's conduct demonstrated an unacceptable risk, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe Judge reasonably explained why the evidence presented in mitigation was insufficient to overcome the government’s security concerns.
AG ¶ 17rejectedPersonal ConductThe applicant's claims of mitigating circumstances were not sufficient to outweigh 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 4, 2007
Answer filed—
Hearing heldSep 19, 2007
Decision dateJan 30, 2008

Cite For

Denial Based on Financial Issues Under Guideline F
Denial Based on Personal Conduct Under Guideline E
Burden of Proof Lies with the Applicant to Demonstrate Mitigation of 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 an applicant who was denied a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge did not adequately weigh mitigating evidence, including a long history of holding a security clearance without incident. The Board affirmed the Judge's decision, finding no harmful error in the evaluation of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

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 issues.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's decision was arbitrary and capricious.

Why the Board ruled this way

The Board found that the Judge properly considered the evidence and reasonably concluded that the security concerns had not been mitigated. The Judge's decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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; Guideline E DIGEST: The Board may not consider new evidence on appeal. The fact that Applicant held a security clearance for 34 years without incident was important evidence for the Judge to consider, particularly when evaluating Applicant’s case under the whole person concept. A lengthy track record of complying with security procedures may be a significant factor in mitigation of security concerns presented by problematic conduct or circumstances. However, the Judge is presumed all the evidence in the record. Furthermore the documents to which Applicant refer are cited in the Judge’s decision. Adverse decision affirmed. CASENO: 07-03120.a1 DATE: 01/30/2008 DATE: January 30, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-03120

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 4, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 19, 2007, after the hearing, Administrative Judge Claude R. Heiny 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 Guidelines F and E 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 from circumstance beyond his control (medical problems) and that he had held a security clearance for 34 years without incident. Applicant also argues that his financial problems no longer present a security concern because he obtained a Chapter 7 discharge in bankruptcy subsequent to the hearing. Applicant’s arguments do not demonstrate that the Judge erred. The Board may not consider new evidence on appeal. See Directive ¶ E3.1.29. Therefore, the Board may not consider Applicant’s assertions relating to his subsequent discharge in bankruptcy. That evidence 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). The fact that Applicant has held a security clearance for 34 years without incident was important evidence for the Judge to consider, particularly when evaluating Applicant’s case under the whole person concept. A lengthy track record of complying with security procedures may be a significant factor in mitigation of security concerns presented by problematic conduct or circumstances. However, the Judge is presumed to have considered all the evidence in the record unless he specifically states otherwise. See, e.g., ISCR Case No. 04-08623 at 4 (App. Bd. Jul. 29, 2005); ISCR Case No. 04-08134 at 3 (App. Bd. May 16, 2005). The Judge is not required to cite or discuss every piece of record evidence. See, e.g, ISCR Case No. 04-01961 at 2 (App. Bd. Jul. 12, 2007). The evidence to which Applicant refers is found in Applicant’s Exhibit F and the transcript of the hearing. Both of those documents were referenced in the Judge’s Decision—which indicates that they had been reviewed and considered by the Judge. See Decision at 2-3. Therefore, on the facts of this case, Applicant has not met his burden of rebutting the presumption that the Judge considered that favorable evidence. 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 and had provided false information about his indebtedness in response to two different questions on his security clearance application. At the time of the hearing, Applicant still owed approximately $49,000 on 31 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. The Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome 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 him, the Judge’s ultimate unfavorable security clearance decision under Guidelines F and E 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board