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ISCR Case 07-07266.a1 — CASE

ISCR Case 07-07266.a1denied

Case Headnote

ISCR Case No. 07-07266.a1

Jun 27, 2008· Hon. Jean E. Smallin· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) and Guideline B (Foreign Influence). The denial stemmed primarily from a significant and ongoing history of unpaid debts.

Specifically, the applicant had a lengthy record of failing to meet financial obligations and still owed substantial amounts on delinquent debts. These issues raised disqualifying conditions under AG ¶ 19 and AG ¶ 6.

While the applicant presented mitigating evidence under AG ¶ 20, the judge found it insufficient to resolve the government's security concerns. Consequently, the judge affirmed the denial, concluding that the applicant's financial problems were ongoing and not adequately mitigated.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations
AG ¶ 6raisedForeign Influence

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe judge found the applicant's mitigating evidence insufficient to overcome 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 issuedSep 28, 2007
Answer filed—
Hearing heldMar 11, 2008
Decision dateJun 27, 2008

Cite For

Insufficient Mitigation of Financial Obligations Under Guideline F
Ongoing Financial Problems as a Basis for Denial
Burden of Proof Shifts to 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 from an adverse security clearance decision based on financial considerations and foreign influence. The applicant contended that the Judge did not adequately consider mitigating evidence regarding his financial obligations and that his family connections did not pose a security risk. The Board affirmed the Judge's decision, finding it sustainable based on the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline B

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 obligations.
Judge mis-weighed or ignored evidence — raised by the applicantNot reached
Applicant argued that his family members do not make him vulnerable to coercion under Guideline B.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant's arguments did not demonstrate harmful error in the weighing of evidence.

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

Jean E. Smallin
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 B DIGEST: The Judge found that Applicant had a lengthy and serious history of not meeting financial obligations. Applicant still owed significant amounts on delinquent debts. Thus the Judge could reasonably conclude Applicant’s financial problems were still ongoing. Adverse decision affirmed. CASENO: 07-07266.a1 DATE: 06/27/2008 DATE: June 27, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-07266

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 September 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 B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 11, 2008, after the hearing, Administrative Judge David M. White 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 adverse clearance decision under Guidelines F and B is sustainable. Applicant argues that the Judge’s adverse decision under Guideline F should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence which showed that as to his four delinquent debts, he had paid off one, made small payments on two others, and was still negotiating as to the other. Applicant argues that the Judge’s adverse decision under Guideline B should be reversed because his Nigerian family members do not make him vulnerable to coercion, exploitation, or pressure. 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). As to the Guideline F allegations, 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 his 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. 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. He found in Applicant’s favor as to one of the SOR allegations. However, he 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 him, the Judge’s ultimate unfavorable security clearance decision under Guideline F is sustainable. Because the Judge’s adverse clearance decision under Guideline F is sustainable, the Board need not address the issues raised by Applicant under Guideline B.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin 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