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ISCR Case 07-15506.a1 — CASE

ISCR Case 07-15506.a1denied

Case Headnote

ISCR Case No. 07-15506.a1

Dec 22, 2008· Hon. Jeffrey D. Billett· appeal

Summary

The applicant was denied a U.S. security clearance under Guideline F (Financial Considerations) due to unresolved debts totaling approximately $89,273. The applicant represented himself throughout the process.

The denial was based on the presence of disqualifying conditions as outlined in AG ¶ 19. Specifically, none of the debts alleged in the Statement of Reasons were resolved by the date of the hearing, indicating ongoing financial problems.

The judge determined that the applicant failed to present sufficient evidence to mitigate these financial concerns, and no mitigating conditions under AG ¶ 20 were found to apply. Consequently, the Appeal Board affirmed the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe judge found the mitigating evidence 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 issuedFeb 22, 2008
Answer filed—Applicant represented himself.
Hearing heldJul 28, 2008
Decision dateDec 22, 2008Appeal decision affirmed.

Cite For

Insufficient Mitigation of Financial Issues Under Guideline F
Ongoing Financial Problems as a Basis for Denial
The Standard for Weighing Mitigating Evidence in Security Clearance Cases

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 filed by the applicant after the Administrative Judge denied his request for a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it sustainable and supported by substantial 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 argued that the Judge's adverse clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Judge did not act arbitrarily or capriciously in weighing the evidence presented.

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
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: Correspondence from Applicant submitted after his appeal brief, and raising additional issues, was untimely. Judge’s decision that Applicant had failed to mitigate the Guideline F security concerns is sustainable. Adverse decision affirmed. CASENO: 07-15506.a1 DATE: 12/22/2008 DATE: December 22, 2008 In Re: Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-15506

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 February 22, 2008, 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 July 28, 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 filed his notice of appeal on August 10, 2008. By letter dated August 13, 2008, Applicant was informed that his written appeal brief had to be received by the Appeal Board no later than September 11, 2008. See Directive E3.1.30. On September 10, 2008, the Board received a fax from Applicant stating that he was “away until 15 September 2008, with limited connectivity.” The Board construed that communication as a request for additional time, and notified Applicant by letter dated September 10, 2008, that his deadline for filing his appeal brief was rescheduled to October 10, 2008. By letter dated October 15, 2008, the Board granted Applicant an additional extension until November 4, 2008, based on an October 10, 2008 letter from Applicant in which he stated, in part, that he was having difficulty understanding the information on DOHA’s website. The Board’s October 15, 2008 letter outlined DOHA’s general procedures and included, as an enclosure, a second copy of the Appeal Instructions. Applicant was also informed that no component of DOHA could assist him in drafting his appeal brief, but he was otherwise permitted to seek assistance. On November 4, 2008, the Appeal Board received a letter from Applicant which it construed as an appeal brief requesting that the Judge’s decision be reversed. The Board then allowed the non- appealing party (Department Counsel) the requisite 20 days to file a reply brief. The Board subsequently received a letter from Applicant, dated November 24, 2008, raising additional issues. The Board deems the November 24, 2008 letter to be untimely, and will not consider the issues raised therein. Applicant has not demonstrated that the Judge’s decision is arbitrary, capricious or contrary to law. 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 SOR alleged that Applicant had accumulated 14 debts totaling approximately $89,273. Decision at 2. The Judge found that: “None of the debts alleged in the SOR were resolved as of the date of the hearing, and no payments had been made on any of the debts.” Id. 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 reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. 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 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