Loading case…

ISCR 07-06551.a1: Guideline E security clearance appeal, denied (2008) · CASE

ISCR Case 07-06551.a1denied

Case headnote

ISCR Case No. 07-06551.a1

Apr 30, 2008· Hon. Michael Y. Ra'anan· 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 serious and lengthy history of unmet financial obligations.

At the time of the decision, significant amounts of debt remained unpaid. While the applicant presented some mitigating evidence, the judge determined it was insufficient to overcome the government's security concerns regarding his financial reliability.

Consequently, the security clearance was denied, and this adverse decision was subsequently upheld on appeal. The ruling highlighted the ongoing nature of the applicant's financial issues as a key factor in the denial.

Conditions referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20appliedFinancial ConsiderationsThe judge gave partial credit under relevant mitigating conditions.

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 issuedJul 13, 2007
Answer filed—Applicant requested decision on written record.
Hearing heldJan 23, 2008
Decision dateApr 30, 2008Appeal affirmed.

Cite for

Weighing of Mitigating Evidence Under Guideline F
Ongoing Financial Obligations as a Disqualifying Factor
The Burden of Proof Shifts to the Applicant After Government Raises 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 was regarding the denial of a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge did not adequately consider mitigating evidence related to outstanding debts. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNoreen A. Lynch denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline EGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The Judge's failure to mitigate the Guideline F security concerns is claimed to be arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the presence of some mitigating evidence does not compel a favorable decision and that the Judge reasonably weighed the evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo 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
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 presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. Adverse decision affirmed. CASENO: 07-06551.a1 DATE: 04/30/2008 DATE: April 30, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-06553

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Judge found in favor of Applicant as to Guideline E and SOR allegations 1(b), 1(e), and 1(i). Those favorable findings are not at issue on appeal. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 13, 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 the case be decided on the written record. On January 23, 2008, after considering the record, Administrative Judge Noreen A. Lynch 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’s failure to mitigate the Guideline F security concerns is arbitrary, capricious, or contrary to law. Finding no error, we affirm. 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 the outstanding debts listed in the SOR had been either paid off, successfully disputed, or charged off and were unenforceable. Applicant’s arguments do not demonstrate that the Judge erred. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. 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 the case was submitted for decision, Applicant still owed significant amounts on debts that had been charged off. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing. See, e.g., ISCR Case No. 06-23894 at 2 (App. Bd. Mar. 6, 2008). 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. She gave Applicant partial credit under the relevant mitigating conditions and found in his favor as to several of the SOR allegations. However, she reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome all of 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 her, 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: 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board