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ISCR Case 07-04192.a1 — CASE

ISCR Case 07-04192.a1denied

Case Headnote

ISCR Case No. 07-04192.a1

Apr 24, 2008· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to six delinquent debts totaling $19,691. The appeal board affirmed the adverse decision.

The primary disqualifying condition raised was AG ¶ 20(a). Despite possessing $200,000 in a retirement account, the applicant failed to provide any evidence of repayment for the outstanding debts.

This lack of demonstrated effort to resolve the financial delinquencies, even with available assets, was the basis for the denial.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Key Rule Quoted

“Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.'”
— Directive ¶ E3.1.32.1.

Procedural Posture

SOR issuedJul 26, 2007
Answer filed—
Hearing heldJan 17, 2008
Decision dateApr 24, 2008

Cite For

Affirmation of Adverse Security Clearance Decisions Based on Delinquent Debts Under Guideline F
Importance of Providing Evidence of Debt Repayment in Financial Considerations Cases
Definition of Substantial 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 her request for a security clearance based on six delinquent debts totaling $19,691. The applicant argued that the Judge's decision was not supported by substantial evidence and was arbitrary and capricious. The Board found no error and affirmed the Judge's decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge's adverse security clearance decision is not supported by substantial record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's adverse security clearance decision is arbitrary, capricious, and contrary to law.
New evidence offered (barred on appeal) — raised by the applicantRejected
The Board should take official notice of certain documents submitted for the first time on appeal.

Why the Board ruled this way

The Judge's findings of fact were supported by substantial evidence, and the decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jeffrey D. Billett
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: Applicant has six delinquent debt and offered no evidence that these debts had been paid, although she has $200,00 in her retirement account. Adverse decision affirmed. CASENO: 07-04192.a1 DATE: 04/24/2008 DATE: April 24, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04192

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT James J. McKee, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 26, 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 January 17, 2008, after the hearing, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether the Judge’s adverse security clearance decision is supported by substantial record evidence; whether the Board should take official notice of certain documents submitted for the first time on appeal; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge made sustainable findings that Applicant had six delinquent debts, totaling $19,691. The record contained no evidence that these debts had been paid. Applicant admitted each of these debts in her answer to the SOR, though for two of them, one for $8,948 and another for $4,035, Applicant stated she did not remember the debts. She had experienced some unemployment from February 2001 until November 2002. She has approximately $5,000 in a savings account and about $200,000 in a 401(k). The Board has examined Applicant’s allegations of error in light of the entire record. We conclude that the Judge’s material findings of security concern are based upon substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.”) Applicant has requested that the Board to take official notice of certain documents. These documents constitute new evidence, which the Board cannot consider. Directive ¶ E3.1.29. See also ISCR Case No. 06-22871 at 2 (App. Bd. Jan. 24, 2008). In any event, the matters which Applicant has submitted do not constitute newly discovered evidence. Rather, they are documents that were readily discoverable through the exercise of due diligence prior to the close of record. See ISCR Case No. 06-22581 at 2 (App. Bd. Nov. 2, 2007). See also Girault v. U.S., 135 F. Supp. 521, 524 (U.S. Ct. of Cl. 1956). In view of the fact that Applicant has $200,000 in her retirement account and nevertheless has not paid off her remaining delinquent debt, the Board concludes that there is little chance that, had the documents in question been provided to the Judge, he would have issued a different decision. Viewed in the light of the record as a whole, the Judge’s decision articulates “a satisfactory explanation for [his] conclusions, including a rational connection between the facts found” and his adverse decision. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). The record supports the Judge’s conclusion that Applicant has not met her burden of persuasion that it is “clearly consistent with national security” for her to have a clearance. Decision at 7. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Accordingly, the Board concludes that the Judge’s decision is not arbitrary, capricious, or contrary to law.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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