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ISCR 07-07883.a1: Guideline E security clearance appeal, denied (2009) · CASE

ISCR Case 07-07883.a1denied

Case headnote

ISCR Case No. 07-07883.a1

Mar 9, 2009· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily due to unmitigated financial concerns under Guideline F (Financial Considerations). The decision also cited Guideline E (Personal Conduct) and Guideline J (Criminal Conduct).

Disqualifying conditions were raised, specifically AG ¶ 20, indicating serious financial issues. While the applicant made some efforts to address his debts, these were deemed insufficient to mitigate the overall financial concerns. The judge noted that the applicant's repayment record was minimal compared to the total debt owed.

Although some mitigating conditions were applied, specifically AG ¶ 21(a) and AG ¶ 21(c), they did not outweigh the serious disqualifying conduct. Ultimately, the judge found the applicant's efforts inadequate, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)appliedThe Behavior Was Not Recent
AG ¶ 21(c)appliedThe Individual Has Initiated a Good-faith Effort to Repay Overdue Creditors or Otherwise Resolve Debts

Key rule quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedJun 9, 2008
Answer filed—
Hearing heldJan 9, 2009
Decision dateMar 9, 2009

Cite for

Insufficient Mitigation of Financial Concerns Under Guideline F
Weighing of Mitigating Evidence Against Disqualifying Conduct
Standards for Granting Security Clearances in Relation to National Security Interests

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 a denial of a security clearance based on financial considerations, personal conduct, and criminal conduct. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline EGuideline J

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence 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

Michael Y. Ra’anan (Chair)
Jeffrey D. Billett
Michael D. Hipple

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; Guideline J DIGEST: The Judge concluded that Applicant’s efforts to address his delinquent debt, while representing a good start, were not sufficient to mitigate the Guideline F security concerns in his case. Adverse decision affirmed. CASENO: 07-07883.a1 DATE: 03/09/2009 DATE: March 9, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-07883

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 June 9, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January The Judge ruled in Applicant’s favor regarding the SOR allegations under Guidelines E and J. Those favorable rulings are not at issue on appeal. 9, 2009, after the hearing, Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, and contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. Applicant asserts that he is a responsible, trustworthy person, and the fact that he has financial problems does not mean that he would jeopardize his security clearance. Applicant maintains that he is acting responsibly to correct his debt delinquencies and is making payments to retire his debts. These assertions do not establish error on the part of the Judge. 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). A party’s’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 weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He concluded that, notwithstanding the partial applicability of two Guideline F Mitigating Factors, the evidence in mitigation was of insufficient strength to overcome the government’s security concerns. Specifically, the Judge noted that Applicant’s repayment efforts represent a good start, but his record of repayment has been skimpy to date and Applicant has made little progress in light of the overall size of his indebtedness. These conclusions are reasonably supported by the record. The Judge also considered Applicant’s service to the country in his whole person analysis. The Board does not review a case de novo. The favorable 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 3 (App. Bd. Sep. 4, 2007). 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)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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: 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: Michael D. Hipple Michael D. Hipple

Administrative Judge Member, Appeal Board