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ISCR Case 08-00613.a1 — CASE

ISCR Case 08-00613.a1denied

Case Headnote

ISCR Case No. 08-00613.a1

Nov 17, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from significant, unresolved, and recent financial indebtedness, coupled with omissions on the applicant's security clearance application.

Specifically, the applicant had 16 outstanding debts totaling $55,582. These debts were deemed unresolved and recent, contributing to the government's financial concerns. Furthermore, the applicant failed to disclose two judgments and several debts over 180 days delinquent on the application, raising issues under personal conduct.

The judge concluded that the applicant's financial problems were not isolated incidents and presented a potential future security risk. Despite the application of some mitigating conditions (AG ¶ 21, AG ¶ 17), the applicant failed to adequately resolve the disqualifying conditions (AG ¶ 20, AG ¶ 15), leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge concluded that not enough time had elapsed to show that the applicant's financial problems were resolved or under control.
AG ¶ 17rejectedPersonal ConductThe applicant failed to mitigate his admitted falsifications on his security clearance application.

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 issuedOct 31, 2008
Answer filed—
Hearing heldSep 10, 2009
Decision dateNov 17, 2009

Cite For

Insufficient Mitigation of Financial Issues Under Guideline F
Recent and Unresolved Financial Problems as a Basis for Denial
Failure to Disclose Significant Debts on Security Clearance Application Under Guideline E

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 personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board affirmed the denial, finding that the Judge properly weighed the evidence and provided sufficient reasoning for the unfavorable decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert J. Tuider — 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 argued that the Judge's 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 articulated a satisfactory explanation for the denial of the security clearance, including a rational connection between the facts and the decision made.

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

Jeffrey D. Billett
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: A Judge is presumed to have considered all the evidence in the record. Applicant’s evidence in mitigation was not sufficient to meet his burden of persuasion. Adverse decision affirmed. CASENO: 08-00613.a1 DATE: 11/17/2009 DATE: November 17, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-00613

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 31, 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 Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 10, 2009, after the hearing, Administrative Judge Robert J. Tuider 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. The Judge found that Applicant’s indebtedness began in approximately 2001 and continued until 2008. Applicant had 16 debts totaling $55,582. Applicant stated that his financial problems began when he invested in an unsuccessful pyramid scheme and when he incurred expenses to help out family members. These events began a “financial tailspin” that did not end until Applicant filed for bankruptcy in 2008. An initial Chapter 13 bankruptcy was converted to a Chapter 7 two months prior to the hearing. Applicant failed to list two judgments and debts over 180 days delinquent during the last seven years on a 2007 security clearance application. He also failed to list debts currently over 90 days delinquent. Applicant’s pride got the better of him when he completed the application and he was too embarrassed to put the information down. The Judge concluded that while some mitigation was established owing to the fact that Applicant had to deal with a death in the family and received some mandatory counseling connected to the bankruptcy, not enough time had elapsed to show that his financial problems are resolved or under control. The Judge concluded that Applicant’s financial problems are recent, not isolated, and potentially a concern in the future. The Judge also concluded that Applicant had failed to mitigate his admitted falsifications on his security clearance application. Applicant argues that he produced sufficient evidence in mitigation, that the indebtedness was a result of circumstances beyond his control, and that his omissions from the security clearance application were the result of negligence. He also stated that he was embarrassed about his debts. Applicant asserts that the Judge’s decision is arbitrary and capricious because it does not take into consideration the evidence presented. Applicant’s claims do not establish error on the part of the Judge. Concerning Applicant’s assertion that the Judge failed to take into consideration record evidence, there is a rebuttable presumption that a Judge has considered all the record evidence unless he or she specifically indicates otherwise. Applicant’s brief sheds no light on precisely which portions of the record he believes the Judge failed to take into account. Applicant has failed to rebut the presumption. Applicant’s arguments concerning mitigation do not establish error on the part of the Judge. 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). A party’s’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 weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He discussed the applicability of Guideline F mitigating conditions and cogently explained why there was insufficient mitigation to overcome the government’s security concerns. He also discussed the inapplicability of Guideline E mitigating conditions. His conclusions are reasonably supported by the record evidence. 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 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)). “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). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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