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ISCR Case 07-09815.a1 — CASE

ISCR Case 07-09815.a1denied

Case Headnote

ISCR Case No. 07-09815.a1

Jan 30, 2009· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing herself, was denied a security clearance under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The denial was primarily based on financial issues, with the judge finding that the applicant's debt repayment efforts were insufficient to significantly reduce her overall indebtedness.

The judge also determined that the applicant was likely to experience additional financial difficulties in the future, based on the evidence presented. While Disqualifying Condition AG ¶ 20 was raised, Mitigating Condition AG ¶ 20(d) was applied.

Ultimately, the security clearance was denied due to the applicant's ongoing financial challenges and the determination that these issues were likely to persist, impacting her eligibility under Guideline F.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 20(d)appliedMitigating Condition 20(d)The judge concluded that the applicant's efforts at repayment were insufficient to overcome the government's security concerns.

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 issuedMar 7, 2008
Answer filed—Applicant requested a decision based on the written record.
Hearing heldNov 24, 2008
Decision dateJan 30, 2009

Cite For

Insufficient Debt Repayment Efforts Under Guideline F
Ongoing Financial Difficulties as a Security Concern
Weighing of Mitigating Evidence Against Disqualifying Conduct

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 involved an applicant seeking a security clearance who argued that the Judge erred by not applying mitigating factors related to her financial situation. The Board affirmed the Judge's decision, finding that the Judge's conclusions were supported by substantial evidence and that the applicant did not demonstrate harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline EGuideline F

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred by not applying Guideline F mitigating factors in her favor.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's unfavorable decision was arbitrary and capricious.

Why the Board ruled this way

The Board affirmed the Judge's decision because the Judge's conclusion regarding the Applicant's financial situation was reasonably supported by the record evidence, and the Applicant did not demonstrate that the Judge committed error in weighing the evidence.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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 E; Guideline F DIGEST: Judge’s conclusion that Applicant’s efforts at debt repayment had not made much of a dent in her overall past-due indebtedness and that she was likely to experience additional financial difficulties was reasonably supported by the record evidence. Adverse decision affirmed. CASENO: 07-09815.a1 DATE: 01/30/2009 DATE: January 30, 2009 In Re: ---------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-09815

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Judge found in favor of Applicant regarding Guideline E. That portion of the case is not at issue on appeal. The principal assertion being that Applicant has cut her debt load in half in the period of a year after she employed the aid of a debt consolidation service. There is no support for this assertion in the written record. [T]he individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 7, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided upon the written record. On November 24, 2008, after considering the record, Administrative Judge Joseph Testan 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 erred by not applying Guideline F mitigating factors in her favor. For the following reasons, the Board affirms the Judge’s unfavorable decision. Applicant offers new evidence in the form of factual assertions that are not found in the record below. The Board cannot consider new evidence on appeal. Directive ¶ E3.1.29. Applicant argues that despite her earlier financial irresponsibility, she has been making an honest attempt to correct the situation and repay her debts. She states that she has both the willingness and the ability to satisfy her debts and because of this, the Judge’s unfavorable decision should be reversed. Applicant has not demonstrated that the Judge has committed error. 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 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 Guideline F Mitigating Condition 20.d. applied to the case, but reasonably explained why the applicability of that factor was of insufficient strength to overcome the government’s security concerns. Specifically, the Judge concluded that, given all of the circumstances indicated by the record, that Applicant’s efforts at repayment had not made much of a dent in her overall past-due indebtedness and that she was likely to experience additional financial difficulties as she continues to address her past-due indebtedness. This conclusion is reasonably supported by the record evidence. 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board