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ISCR Case 07-18698.a1 — CASE

ISCR Case 07-18698.a1denied

Case Headnote

ISCR Case No. 07-18698.a1

Nov 18, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily due to financial issues under Guideline F (Financial Considerations). The applicant had a serious history of not meeting financial obligations, and at the time of the decision, still carried significant outstanding debts. These conditions raised disqualifying concerns under AG ¶ 20.

While the applicant received a favorable finding under Guideline E (Personal Conduct), the mitigating evidence presented regarding his financial situation was deemed insufficient to overcome the government's security concerns. The applicant's financial management and inability to satisfy his debts were central to this determination.

Ultimately, the security clearance was denied because the applicant's financial conduct presented an unacceptable security risk, despite the application of mitigating conditions under AG ¶ 21.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe Judge found the mitigating evidence insufficient to overcome the disqualifying conduct.

Key Rule Quoted

“Security clearance determinations are not limited to consideration of work performance or conduct during duty hours.”
— ISCR Case No. 04-08623 at 5 (App. Bd. Jul. 29, 2005)

Procedural Posture

SOR issuedMay 12, 2008
Answer filed—
Hearing heldSep 5, 2008
Decision dateNov 18, 2008

Cite For

Insufficient Mitigating Evidence Under Guideline F
Serious Financial Obligations Impacting Security Clearance
Nexus Between Financial Conduct and Security Eligibility

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 contested the Judge's adverse decision based on financial considerations and personal conduct. The Board reviewed the case and found that the Judge's findings were supported by substantial evidence and that the applicant did not demonstrate any harmful error. The Board affirmed the Judge's decision denying the security clearance.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's adverse decision should be reversed because the Judge did not give sufficient weight to Applicant's mitigating evidence.
Erroneous finding of fact — raised by the applicantRejected
Applicant argues that the Judge erred in finding that he had the means to satisfy his debts.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant claims that the Judge's findings of fact give a distorted picture of his financial situation.

Why the Board ruled this way

The Board concluded that the Judge’s findings are based on substantial evidence and reasonable characterizations or inferences drawn from the record. The Judge's decision was not arbitrary, capricious, or contrary to law, and the adverse decision was affirmed.

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
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; Guideline E DIGEST: After reviewing the record the Board concludes that the Judge’s findings are based on substantial evidence or constitute reasonable characterizations or inferences that could be drawn from the record. Security clearance determinations are not limited to consideration of work performance or conduct during duty hours. Adverse decision affirmed CASENO: 07-18698.a1 DATE: 11/18/2008 DATE: November 18, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-18698

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Judge’s favorable finding under Guideline E is not at issue on appeal. Applicant argues that he is only making $6,000 a month, rather than $12,000 a month as found by the Judge. On that issue, the transcript contains the following exchange. Judge: “You make $12,000 a month?” Applicant: “Yes.” Judge: “And that is after taxes and other deductions?” Applicant: “Yes.” Transcript at 88. Applicant also argues that the Judge erred in finding that he had the means to satisfy his debts. As to that issue, the transcript contains the following exchange. Applicant: “. . . I can make $1,000 per month.” Judge: “So now it’s sixteen months?” Applicant: “$1,000 per month.” Transcript at 37.

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 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 hearing. On September 5, 2008, after the hearing, Administrative Judge Carol G. Ricciardello 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 under Guideline F is arbitrary, capricious or contrary to law.1 Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence, which indicated that Applicant’s inability to satisfy his outstanding debts was due to a period of underemployment and the collapse of the housing market. He also contends that the Judge’s findings of fact give a distorted picture of his financial situation. Finally, Applicant notes that he has never compromised classified information. Applicant has not demonstrated the Judge erred. (1) The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). After reviewing the record, the Board concludes that the Judge’s findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). Applicant’s house was foreclosed on in August 2007, and he owed the mortgage company over $11,000. He had not made any payments on that debt and stated that he intended to file for bankruptcy to discharge it after he had paid other delinquent debts. Decision at 3. (2) The Directive presumes there is a nexus or rational connection between proven conduct under any of the Guidelines and an applicant’s security eligibility. See, e.g., ISCR Case No. 02- 22325 at 3-4 (App. Bd. Jul. 30, 2004). Security clearance determinations are not limited to consideration of work performance or conduct during duty hours. See, e.g., ISCR Case No. 04- 08623 at 5 (App. Bd. Jul. 29, 2005). The federal government need not wait until an applicant actually mishandles or fails safeguard classified information before it can deny or revoke access to such information. See Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969). The absence of security violations does not bar or preclude an adverse security clearance decision. See ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13, 2005). (3) 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 found that Applicant had a serious history of not meeting financial obligations. At the time the case was submitted for decision, Applicant still had significant outstanding debts, and was still trying to resolve his financial problems. In light of the foregoing, the Judge could reasonably conclude that those 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 seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She found in favor of Applicant as to several of the SOR allegations. However, she reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her 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 are 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board