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ISCR 08-00826.a1: Guideline F security clearance appeal, denied (2010) · CASE

ISCR Case 08-00826.a1denied

Case headnote

ISCR Case No. 08-00826.a1

deniedMar 19, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing herself, was denied due to concerns under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct). The applicant had over $30,000 in delinquent debts, which raised questions about her trustworthiness and financial responsibility.

Specifically, the applicant failed to provide sufficient corroborating evidence for her claims of financial hardship stemming from medical issues. Furthermore, she did not demonstrate adequate responsible action regarding her debts, having only resolved one debt through wage garnishment.

The appeal board affirmed the adverse determination, concluding that the applicant did not provide adequate evidence of financial responsibility or mitigation for her debts. The board also found no indication that the applicant was denied due process. The security clearance was ultimately denied.

Why the applicant was denied

The applicant had numerous delinquent debts exceeding $30,000.
The applicant did not provide adequate corroboration for her claims of financial hardship due to medical issues.
The applicant failed to demonstrate responsible action regarding her debts, having only paid off one debt through wage garnishment.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 31raisedCriminal Conduct

Key rule quoted

“A Judge is presumed to have considered all the evidence in the record.”
Cf. ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009)

Procedural posture

SOR issuedMay 5, 2009
Answer filed—
Hearing held—
Decision dateMar 19, 2010

Cite for

Affirmation of Adverse Trustworthiness Determinations Based on Financial Irresponsibility
Presumption That Judges Consider All Evidence in the Record
Lack of Authority for Probationary Trustworthiness Determinations.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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KEYWORD: Guideline F; Guideline J DIGEST: Applicant contends the Judge relied on outdated evidence. She did not object to the evidence nor did she respond to the File of Relevant Material. Adverse decision affirmed. CASENO: 08-00826.a1 DATE: 03/19/2010 DATE: March 19, 2010 In Re: ----- Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 08-00826

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Judge made a favorable formal finding under subparagraph 1.a. of the SOR involving a debt to a state agency and a subsequent judgment. That finding is not at issue in this appeal. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a trustworthiness designation. On May 5, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness concerns raised under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On December 31, 2009, after considering the record, Administrative Judge David M. White denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s findings of fact are supported by substantial record evidence; whether Applicant was denied due process of law; whether the Judge failed to consider all the record evidence; and whether the Judge’s adverse trustworthiness determination is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant has numerous delinquent debts, totaling over $30,000. While acknowledging that Applicant’s claims that her financial problems were due at least in part to medical issues , the Judge noted that Applicant had not provided adequate corroboration nor had she demonstrated responsible action in regard to her debts. Specifically, the Judge noted that Applicant had paid off only one debt (as a result of a wage garnishment) in spite of evidence that she has income in excess of her expenses and had provided only sparse evidence of financial counseling. The Judge concluded that Applicant had failed to mitigate the trustworthiness concerns in her case. After reviewing the record, the Board concludes that the Judge’s material 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 trustworthiness concern are sustainable. See Directive ¶ E3.1.32.1 for the definition of “substantial evidence.” Applicant contends that evidence regarding her husband’s income which the Judge considered is outdated or otherwise not relevant. The Board construes this as contending that the Judge denied Applicant the due process provided for in the Directive. The Judge noted in his decision that Applicant did not provide a response to the File of Relevant Material. She also did not object to consideration of the evidence submitted by Department Counsel. Decision at 2. Applicant has failed to demonstrate that she was denied due process. Applicant contends that the Judge “misjudged” her by focusing on the negative aspects of her past conduct and not focusing much attention on the positive changes she made in her life since she became employed, i.e. not incurring other debts or engaging in similar criminal offenses. The Board construes this as contending that the Judge failed to give proper weight to the record evidence. A Judge is presumed to have considered all the evidence in the record. Cf. ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009); ISCR Case No. 07-00553 at 2 (App. Bd. May 23, 2008). Applicant’s appeal brief is not sufficient to rebut this presumption. A party’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., ADP Case No. 08-06284 at 2 (App. Bd. Dec. 10, 2009). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the 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)). In light of the entirety of the record evidence, the Judge’s adverse trustworthiness determination is sustainable.

Finally, Applicant seeks a “probationary” trustworthiness determination if a reversal of the Judge’s decision cannot be granted. The Board does not have authority to grant a conditional or probationary trustworthiness determination. Cf. ISCR Case No. 08-11222 at 2 (App. Bd. Sep. 9 2009).

ORDER

The Judge’s adverse trustworthiness determination is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board