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ISCR Case 07-17659.a1 — CASE

ISCR Case 07-17659.a1denied

Case Headnote

ISCR Case No. 07-17659.a1

Nov 21, 2008· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing herself, was denied a security clearance under Guideline F, Financial Considerations. The appeal board upheld this denial, concluding that her financial issues were not primarily caused by circumstances beyond her control.

The board noted that while some mitigating evidence was presented, it did not outweigh the government's security concerns. A key factor in the denial was that the applicant's bankruptcy discharge was still ongoing at the time of the hearing, preventing it from being considered as mitigating evidence.

Ultimately, the board found that the disqualifying conditions raised under Adjudicative Guideline (AG) ¶ 19 were not sufficiently mitigated by the conditions applied under AG ¶ 20, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe Judge concluded that the applicant's financial problems were not primarily due to circumstances beyond her control.

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 issuedMay 7, 2008
Answer filed—
Hearing heldSep 12, 2008
Decision dateNov 21, 2008

Cite For

Evaluation of Financial Considerations Under Guideline F
Impact of Ongoing Bankruptcy on Security Clearance Decisions
Weight of Mitigating Evidence 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 financial considerations under Guideline F. The applicant argued that her financial issues were primarily due to circumstances beyond her control and that her bankruptcy had been discharged. The Board affirmed the Judge's decision, stating that the bankruptcy discharge was new evidence that could not be considered and that the Judge's findings were reasonable based on the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — 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 contended that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board affirmed the Judge's decision, finding that the Judge's conclusions were reasonable and supported by substantial evidence, and that the applicant's arguments did not demonstrate harmful error.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
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: Applicant’s proffer of the bankruptcy discharge is new evidence which the Board cannot consider. At the time of the hearing the bankruptcy proceedings were ongoing. Also, the Judge’s conclusion that Applicants financial problems were not primarily the product of circumstances beyond control was reasonable in light of the sustainable findings. Adverse decision affirmed. CASENO: 07-17659.a1 DATE: 11/21/2008 DATE: November 21, 2008 In Re: ------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-17659

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 May 7, 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 September 12, 2008, after the hearing, the Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. Applicant’s central argument is that her Chapter 7 bankruptcy action has now been discharged and she is now debt free except for car and furniture payments. The proffer of her discharge in bankruptcy constitutes new evidence, which the Board cannot consider on appeal. Directive ¶ E3.1.29. The bankruptcy action was ongoing at the time of the hearing, and the Judge acknowledged its pendency in his decision. However, he concluded that any positive inference that could be derived from the bankruptcy filing was merely speculative considering the fact that the debts had not yet been discharged. Such a conclusion was not error, and record evidence of a continuing but incomplete Chapter 7 bankruptcy action does not require a Judge to mitigate security concerns arising out of an applicant’s financial delinquencies. Applicant asserts that her husband’s work-related injuries and the subsequent loss of his income in 2007 resulted in her financial difficulties. In raising these matters, Applicant essentially contends that the Judge’s adverse decision should be reversed because the Judge did not give adequate weight to mitigating evidence. Applicant’s argument does not demonstrate that the Judge’s ultimate conclusions are in error. 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 made a sustainable finding that several of Applicant’s debt delinquencies predated her husband’s injuries and disability. In light of this, the Judge could reasonably conclude that Applicant’s financial problems were not primarily a result of circumstances beyond her control. The Judge reasonably explained why the evidence presented by Applicant in mitigation 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’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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