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ISCR Case 07-10841.a1 — CASE

ISCR Case 07-10841.a1denied

Case Headnote

ISCR Case No. 07-10841.a1

Aug 24, 2009· Hon. Jean E. Smallin· appeal

Summary

The applicant, representing himself, was denied a U.S. security clearance under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The denial was primarily due to substantial and unresolved financial debts, which were largely attributed to his wife's gambling habit.

The appeal board affirmed the denial, citing the applicant's failure to demonstrate a reasonable response to these significant financial problems. While the gambling habit was outside his direct control, the applicant did not show sufficient efforts to resolve the resulting debts.

The disqualifying conditions raised were AG ¶ 20 and AG ¶ 17. Ultimately, the board concluded that the applicant had not mitigated the security concerns related to his financial considerations.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 17raisedForeign Influence

Key Rule Quoted

“It is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedDec 17, 2007
Answer filed—
Hearing heldMay 27, 2009
Decision dateAug 24, 2009

Cite For

Affirmation of Denial Based on Financial Irresponsibility Under Guideline F
Consideration of External Factors Affecting Financial Issues
Importance of Demonstrating Good-faith Efforts to Resolve Debts

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 financial issues related to his wife's gambling. The applicant argued that the Judge's findings were not supported by evidence and that the decision was arbitrary. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowWilford H. Ross — 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's findings of fact were not supported by substantial evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's factual findings were supported by substantial evidence and that the conclusions drawn were not arbitrary or capricious. The Judge's decision was consistent with national security interests.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

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: Although Applicant’ financial problems were related to his wife’s gambling habit, which was not within his control, he failed to demonstrate that his response to his debts was reasonable. Adverse decision affirmed. CASE NO: 07-10841.a1 DATE: 08/24/2009 DATE: August 24, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-10841

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 December 17, 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 May 27, 2009, after the hearing, Administrative Judge Wilford H. Ross denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.

FOOTNOTES

1 The Judge’s favorable findings under Guideline F, paragraph 1(g), and under Guideline B are not at issue in this appeal.

2 See Directive ¶ E2.20(b): “[T]he conditions that resulted in the financial problem were largely beyond the person’s control . . . and the individual acted responsibly under the circumstances[.]”

3 See Directive ¶¶ E2.20(c), (d): “[T]he person has received or is receiving counseling . . . and/or there are clear indications that the problem is being resolved[;]” “[T]he individual initiated a good-faith effort to repay overdue creditors[.]” Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact are supported by substantial record evidence and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law.1 Finding no error, we affirm. The Board has examined the Judge’s factual findings and concludes that they are based upon substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “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.”) For example, Applicant contends that he is not in debt in an amount in excess of $100,000 as the Judge stated. This finding of the Judge is located in the Analysis portion of the decision. It is supported by Government Exhibits 2 and 8, Credit Reports; by testimony adduced at the hearing; and by Applicant’s response to the SOR. Even if the Judge’s statement were erroneous, it would be harmless, viewed in light of record evidence that Applicant has significant delinquent debt. See, e.g., ISCR Case No. 01-23362 at 2 (App. Bd. Jun. 5, 2006); ISCR Case No. 03-09915 at 4-5 (App. Bd. Dec. 16, 2004); ISCR Case No. 01-11192 at 4-5 (App. Bd. Aug. 26, 2002). The Judge gave due consideration to evidence that Applicant’s indebtedness was caused in large measure by his wife’s gambling habit, which suggests that the debts originated from causes outside his control. However, the Judge also concluded that Applicant had not demonstrated a reasonable response to the debts.2 He further concluded that Applicant had not demonstrated that his financial problems are being resolved or that he had initiated a good-faith effort to pay off his debts.3 The Judge’s conclusions are sustainable. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the 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 Judge’s decision that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 10. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”). Order The Judge’s adverse security clearance decision 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