CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 07-16028.a1 — CASE

ISCR Case 07-16028.a1denied

Case Headnote

ISCR Case No. 07-16028.a1

Oct 9, 2008· Hon. Jean E. Smallin· appeal

Summary

A 58-year-old applicant with a B.S. degree in business and management was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations).

The denial stemmed from two primary issues. First, the applicant had delinquent debts totaling over $23,000. Second, he provided false information regarding these debts on his security clearance application.

The judge found the applicant's explanations for both his financial difficulties and the misrepresentation on his application to be unconvincing, leading to the affirmation of the adverse decision.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“The general standard is that a clearance may be granted only when 'clearly consistent with the interests of the national security.'”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedFeb 12, 2008
Answer filed—Applicant represented himself pro se.
Hearing heldJul 10, 2008Decision made on the written record.
Decision dateOct 9, 2008

Cite For

Denial of Security Clearance Due to Significant Financial Issues Under Guideline F
False Statements on Security Clearance Applications Under Guideline E
Burden of Persuasion on the Applicant Regarding 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 who was denied a security clearance due to delinquent debts exceeding $23,000 and false statements on his security clearance application. The Board affirmed the Administrative Judge's decision, finding no harmful errors in the Judge's conclusions regarding the applicant's burden of persuasion under Guideline E.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that certain 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.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the adverse decision was not arbitrary or capricious. The applicant's credibility was not evaluated in a hearing context due to his choice for a written record decision.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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 E DIGEST: Applicant has delinquent debts exceeding $23,000.00 and did not truthfully answer questions about the debts on his security clearance application. The Judge articulated a satisfactory explanation for her conclusion that Applicant failed to met his burden of persuasion regarding the Guideline E security concern. Adverse decision affirmed. CASENO: 07-16028.a1 DATE: 10/09/2008 DATE: October 9, 2008 In Re: ------------------------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-16028

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se “Given his previous acknowledgment of [his delinquent] debts in . . . January 2005 . . . and his expressed intent at that time to contact his creditors and pay his debts, Applicant’s denials on his May 15, 2007 [SCA] were not credible.” Decision at 8. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 12, 2008, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On July 10, 2008, after considering the record, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact are supported by substantial record evidence; whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is 58 years old and holds a B.S. degree in business and management. He served in the U.S. military from 1969 to 1977 and has held a security clearance since 1969. Applicant has delinquent debts exceeding $23,000, which originated during a period of underemployment from 2001 until 2004. The debts resulted from his use of three credit cards to pay living expenses. These debts are owed to two separate creditors and were unpaid as of the close of the record. When completing his security clearance application (SCA), Applicant answered “no” to questions inquiring about debts over 90 days and 180 days. These answers were not true, in light of the ongoing debts described above. Additionally, Applicant had previously filed for Chapter 13 bankruptcy protection, which was subsequently dismissed due to his failure to comply with the terms of the payment plan. We have examined the Judge’s decision in light of the record as a whole. The Judge’s material findings of security concern are supported by 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.”) Viewed in light of the entire record, the Judge’s conclusion that Applicant deliberately falsified his SCA is sustainable. Furthermore, the Judge has articulated a satisfactory explanation for her conclusion that Applicant has failed to meet his burden of persuasion regarding the Guideline E security concern. See Directive ¶ E3.1.15 (After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns); 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.’”). In this regard, the Board notes that Applicant chose to have the case decided upon the written record, with the result that his credibility could not be evaluated in the context of a hearing. See ISCR Case No. 08-00899 at 3 (App. Bd. Jul. 29, 2008). Accordingly, the Judge’s adverse decision under Guideline E is sustainable. In light of this conclusion, the Board need not address the Guideline F issues raised on appeal.

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