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ISCR Case 07-15663.a1 — CASE

ISCR Case 07-15663.a1denied

Case Headnote

ISCR Case No. 07-15663.a1

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

Summary

A security clearance applicant, representing himself, was denied a clearance due to unfavorable findings under Guideline F (Financial Considerations) and Guideline G (Alcohol Consumption). The applicant admitted to most allegations concerning both financial issues and alcohol consumption.

While the applicant contested the judge's findings regarding his employment history, these were ultimately deemed harmless errors that did not impact the final decision. The Board also noted that it could not consider new evidence presented during the appeal, which included steps the applicant had taken to resolve his financial issues.

Based on the admitted allegations and the inability to consider new evidence, the appeal was denied, affirming the original decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19appliedFinancial Considerations
AG ¶ 22appliedAlcohol Consumption

Key Rule Quoted

“The Board cannot consider new evidence on appeal.”

Procedural Posture

SOR issuedApr 9, 2008
Answer filed—
Hearing heldSep 17, 2008
Decision dateNov 25, 2008

Cite For

Unfavorable Findings Under Guideline F and G
Limitations on New Evidence in Appeals
Harmless Error in Employment History Findings

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 a denial of a security clearance based on financial considerations and alcohol consumption. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board affirmed the decision, finding no harmful error and that the Judge's findings were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline G

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's 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 decision was supported by substantial evidence and that the applicant did not demonstrate that the decision was arbitrary, capricious, or contrary to law. The Board also noted that it cannot consider new evidence on appeal.

Standard of review applied

No de-novo re-decisionNo new evidence on appealHarmful-error gatekeeper

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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline F; Guideline G DIGEST: The Board cannot consider new evidence on appeal. Applicant does not appeal the Judge unfavorable findings and conclusions under Guideline G. Adverse decision affirmed. CASENO: 07-15663.a1 DATE: 11/25/2008 DATE: November 25, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-15663

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 April 9, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the Applicant admitted all the SOR allegations except two of the debts. Applicant identifies as a factual error the Judge’s statement that Applicant had been steadily employed since February 2000. While there are imprecise references in the transcript to unemployment, Applicant’s detailed employment history in his appeal constitutes new evidence. However, even if the Judge’s statement about Applicant’s steady employment were considered to be in error, it would be harmless because correction of that statement would not likely change the Judge’s decision. basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On September 17, 2008, after the hearing, Administrative Judge David M. White 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 ultimate decision is arbitrary, capricious, or contrary to law. The security concerns identified by the government in the SOR involve 15 debts under Guideline F, as well as intoxication and three alcohol-related arrests under Guideline G . The Judge made formal findings against Applicant as to all of the allegations under Guideline G and as to 12 of the 15 debts under Guideline F. In his appeal, Applicant raises arguments only with regard to the Judge’s findings and conclusions under Guideline F. The appeal primarily consists of information not presented at the hearing—i.e., new evidence. This evidence includes steps Applicant has taken since the hearing to resolve his financial situation, such as contacting creditors and making payments on the repayment plan initiated shortly before the hearing. The Board cannot consider this information because the Directive does not allow the Board to consider new evidence. See Directive ¶ E3.1.29; and ISCR Case No. 06-22628 at 2 (App. Bd. Oct. 30, 2007). Applicant presents no appeal to the Judge’s unfavorable findings and conclusions under Guideline G. The Board does not review a case de novo. See, e,g., ISCR Case No. 06-18998 at 3 (App. Bd. Nov. 9, 2007). Applicant has not demonstrated that the Judge’s decision is arbitrary, capricious, or contrary to law. Given the record that was before him, the Judge’s ultimate unfavorable decision is sustainable.

ORDER

The Judge’s decision 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