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ISCR 07-04413.a1: Guideline E security clearance appeal, denied (2008) · CASE

ISCR Case 07-04413.a1denied

Case headnote

ISCR Case No. 07-04413.a1

Sep 15, 2008· Hon. Jeffrey D. Billet· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily under Guideline F (Financial Considerations), with Guideline E (Personal Conduct) also raised. The denial stemmed from a lengthy and serious history of not meeting financial obligations, which the judge determined to be ongoing at the time of the hearing.

Specifically, the applicant still had substantial delinquent debts, leading the judge to reasonably conclude that his financial problems persisted. While the applicant presented mitigating evidence, it was insufficient to overcome the disqualifying conditions related to his financial history.

Ultimately, the judge found that the applicant's financial issues presented an unacceptable security risk, resulting in the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe judge found the mitigating evidence insufficient to overcome the government's security concerns.
AG ¶ 21rejectedFinancial ConsiderationsThe judge weighed the mitigating evidence against the length and seriousness of the disqualifying conduct.

Key rule quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural posture

SOR issuedOct 28, 2007
Answer filed—
Hearing heldMay 30, 2008
Decision dateSep 15, 2008

Cite for

Weighing of Mitigating Evidence Under Guideline F
Ongoing Financial Issues as a Basis for Denial
Sustainability of Adverse Decisions Based on Serious Financial History

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 and personal conduct. The applicant argued that the Judge did not adequately weigh the mitigating evidence. The Board affirmed the Judge's decision, finding it sustainable based on the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowThomas M. Crean denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not give adequate weight to the mitigating evidence.

Why the Board ruled this way

The Board concluded that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, including a rational connection between the facts found and the choice made.

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

Jeffrey D. Billet
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; Guideline E DIGEST: Although Applicant disagreed with the Judge’s weighing of the evidence, the record as a whole demonstrates that the Judge’s decision is sustainable. Adverse decision affirmed. CASENO: 07-04413.a1 DATE: 09/15/2008 DATE: September 15, 2008 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04413

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 October 28, 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 May 30, 2008, after the hearing, Administrative Judge Thomas M. Crean denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. The Judge’s favorable finding under Guideline E is not at issue on appeal. The Board cannot consider Applicant’s new evidence on appeal. See Directive ¶ E3.1.29. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision under Guideline F is arbitrary, capricious or contrary to law.1

Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not give adequate weight to the mitigating evidence. In support of his requests, Applicant summarizes the favorable evidence he presented below and describes his ongoing efforts to resolve his financial problems. Applicant’s argument does not demonstrate that the Judge erred. 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 had substantial delinquent 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 and whole-person factors. He found in favor of Applicant under Guideline E and as to several of the factual allegations under Guideline F. However, he reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Therefore, 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: Jeffrey D. Billet 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