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ISCR Case 07-10312.a1 — CASE

ISCR Case 07-10312.a1denied

Case Headnote

ISCR Case No. 07-10312.a1

Jul 15, 2008· Hon. Jean E. Smallin· appeal

Summary

This security clearance application was denied under Guideline F (Financial Considerations) due to the applicant's ongoing financial issues. The applicant, representing himself, faced disqualifying conditions related to a lengthy history of not meeting financial obligations.

Specifically, the applicant failed to file federal income tax returns for three years and, at the time of the hearing, had significant outstanding debt from an unresolved judgment for rent. The administrative judge determined that these issues demonstrated a pattern of financial irresponsibility.

While the applicant presented some mitigating evidence, the judge found it insufficient to overcome the government's security concerns. Consequently, the security clearance was denied, as the financial problems were deemed ongoing and inadequately resolved.

Conditions Referenced

Disqualifying

F1raisedFinancial Considerations

Mitigating

F3rejectedFinancial ConsiderationsThe judge found that the mitigating evidence was insufficient to overcome the government's security concerns.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”
— ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007)

Procedural Posture

SOR issuedNov 26, 2007
Answer filed—
Hearing heldApr 30, 2008
Decision dateJul 15, 2008

Cite For

Ongoing Financial Issues Under Guideline F
Insufficient Mitigating Evidence in Financial Considerations Cases
Whole-person Analysis in Security Clearance Determinations

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 due to significant financial issues, including an unresolved judgment. 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 a reasonable weighing of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board concluded that the Judge’s material findings of security concern are supported by substantial evidence and that the Judge reasonably weighed the evidence presented, leading to a sustainable unfavorable decision under Guideline F.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionDeference to the judge’s credibility calls

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: At the time of the hearing Applicant had a significant outstanding debt in the form of an unresolved judgment. The Judge could reasonably conclude that Applicant’s financial problems were ongoing. Adverse decision affirmed. CASENO: 07-10312.a1 DATE: 07/15/2008 DATE: July 15, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-10312

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 November 26, 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 a hearing. On April 30, 2008, after the hearing, Administrative Judge LeRoy F. Foreman 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 is arbitrary, capricious or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because it “. . . is based on inconsistent leveraging of the facts/mitigating circumstances in [t]estimony and the factual time lines and sequence of events.” In support of his contention, Applicant summarizes the evidence he presented at the hearing, and argues that it is sufficient to support a favorable decision under the whole-person concept. Applicant has not demonstrated that the Judge erred. After reviewing the record, the Board concludes that the Judge’s material findings of security concern are supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. See also Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966).

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 history of not meeting financial obligations, including the failure to file federal income tax returns for three years. At the time of the hearing, Applicant still had a significant outstanding debt, in the form of an unresolved judgment for rent, for which he was unable to provide proof of satisfaction. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007). 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 conditions and factors. He found in favor of Applicant as to some of the SOR allegations. However, he reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. 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). Therefore, the Judge’s whole-person analysis and his ultimate unfavorable security clearance decision under Guideline F are sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance 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