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ISCR Case 07-09966.a1 — CASE

ISCR Case 07-09966.a1denied

Case Headnote

ISCR Case No. 07-09966.a1

Jun 25, 2008· Hon. Jean E. Smallin· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F, Financial Considerations, due to unmitigated financial difficulties and unpaid debts. Disqualifying conditions were raised under Adjudicative Guideline (AG) ¶ 20, while mitigating conditions were considered under AG ¶ 21.

The judge determined that the applicant's financial issues and outstanding debts presented an unacceptable security risk. The applicant's primary argument, asserting that some debts were unenforceable under state law, was deemed irrelevant to the security clearance determination and did not mitigate the concerns.

Ultimately, the applicant's financial difficulties and unpaid debts were not sufficiently resolved or explained to overcome the security concerns, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant's evidence did not sufficiently mitigate the financial concerns.

Key Rule Quoted

“Security clearance decisions are not controlled or limited by such statutes of limitation.”

Procedural Posture

SOR issuedOct 24, 2007
Answer filed—Applicant requested decision on written record.
Hearing held—Case decided on written record.
Decision dateJun 25, 2008

Cite For

Reliance on State Statutes of Limitation Does Not Mitigate Financial Concerns Under Guideline F
Insufficient Evidence to Overcome Financial Security Concerns
The Burden of Persuasion Lies with the Applicant to Demonstrate Mitigation of 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 involved an applicant seeking a security clearance who was denied based on financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and did not adequately consider mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowErin C. Hogan — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's failure to mitigate the Guideline F security concerns was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge did not err in weighing the evidence and that the applicant's arguments did not demonstrate harmful error. The Judge's decision was based on substantial evidence and adhered to required procedures.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

Michael D. Hipple
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 DIGEST: Applicant’s reliance on the unenforceability of his debts under a state statute of limitations fails to demonstrate that the Judge erred. Security clearance decisions are not controlled or limited by such statutes of limitation. Adverse decision affirmed. CASENO: 07-09966.a1 DATE: 06/25/2008 DATE: June 25, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-09966

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 24, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested the case be decided on the written record. On March 12, 2008, after considering the record, Administrative Judge Erin C. Hogan 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. Applicant argues that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence. Applicant contends that the outstanding debts listed in the SOR have been paid off, successfully disputed, or charged off and are unenforceable due to the Arizona statute of limitation. Applicant also states that he should have requested a hearing instead of having his case decided on the written record because he believes that Department Counsel was present during the Judge’s consideration of his case. Applicant’s arguments do not demonstrate that the Judge erred. The Judge found that Applicant’s financial difficulties began when Applicant and his wife bought a house in 1987 that they could not afford. Their two children later developed serious medical problems. Applicant’s financial difficulties became severe in 2001. The SOR listed eight unpaid debts. Applicant admitted the debts listed in the SOR. In response to DOHA interrogatories and the File of Relevant Material (FORM), Applicant sent documentation regarding his debts. In his appeal brief, Applicant attempts to further explain his attempts to settle his debts. To the extent that the explanation contains information not presented before the Judge reviewed the record, it cannot be considered on appeal, since the Board cannot consider new evidence. Directive ¶ E3.1.29. 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. 07-06553 at 2 (App. Bd. April 30, 2008). 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). With regard to Applicant’s choice to have his case decided on the written record rather than requesting a hearing, Applicant has not shown that he was disadvantaged by that choice. In this case, Department Counsel had no objection to Applicant’s response to the FORM, but did attach a one- Cf. ISCR Case No. 00-0345 at 3 (App. Bd. Dec. 12, 2001) (discharge of a debt in bankruptcy does not preclude consideration of an applicant’s history of financial problems); ISCR Case No. 99-9020 at 5-6 (App. Bd. Jun. 4, 2001) (although an applicant legally may rely on the running of a statute of limitation to avoid paying a debt, such reliance does not constitute a good faith effort to resolve debts within the meaning of the Directive). paragraph argument in rebuttal to it. There is no indication that Department Counsel had any further contact with the Judge or otherwise influenced the Judge’s decision. Applicant’s reliance on the unenforceability of his debts under the Arizona statute of limitations fails to demonstrate that the Judge erred. Security clearance decisions are not controlled or limited by such statutes of limitation. A security clearance adjudication is not a proceeding aimed at collecting an applicant’s personal debts. Rather, it is a proceeding aimed at evaluating an applicant’s judgment, reliability, and trustworthiness. Accordingly, even if a delinquent debt is legally unenforceable under state law, the federal government is entitled to consider the facts and circumstances surrounding an applicant’s conduct in incurring and failing to satisfy the debt in a timely manner. See, e.g., ISCR Case No. 01-09691 at 3 (App. Bd. Mar. 27, 2003). The federal government must be able to repose a high degree of trust and confidence in persons granted access to classified information. Snepp v. United States, 444 U.S. 507, 511 n. 6 (1980). Security clearance decisions are not an exact science, but rather involve predictive judgments about an applicant’s security eligibility in light of the applicant’s past conduct and present circumstances. Department of Navy v. Egan, 484 U.S. 518, 528-529 (1988). The federal government need not wait until an applicant mishandles or fails to safeguard classified information before it can deny or revoke access to classified information based on an applicant’s conduct or circumstances that raise security concerns even in the absence of security violations. A history of financial difficulties raises security concerns. See, e.g., ISCR Case No. 96-0454 at 2 (App. Bd. Feb. 7, 1997) (discussing negative security significance of a history of excessive indebtedness or recurring financial difficulties). In light of his financial situation, Applicant had the burden of presenting evidence to demonstrate extenuation or mitigation sufficient to warrant a favorable security clearance decision. Directive ¶ E3.1.15. Based on the documentation Applicant provided, the Judge discussed Applicant’s efforts to improve his financial situation, but explained why the evidence he had provided was insufficient to overcome all the government’s security concerns. See, e.g.,ISCR Case No. 07-06553 at 2 (App. Bd. Apr. 30, 2008). Given the record evidence in this case, it was not arbitrary, capricious, or contrary to law for the Judge conclude that Applicant had not met his burden of persuasion so as to warrant a favorable security clearance decision under the clearly consistent with the national interest standard. Directive ¶ E2.2. Applicant has not demonstrated error on the part of the Judge.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, 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