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ISCR Case 08-00899.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date7/29/2008
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 08-00899.a2) →See the hearing decision (Case 08-00899.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jean E. Smallin, Michael D. Hipple, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline BForeign Influence · For Applicant
- Guideline CForeign Preference · For Applicant
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 08-00899.a1denied

Case Headnote

ISCR Case No. 08-00899.a1

Jul 29, 2008· Hon. Jean E. Smallin· appeal

Summary

An applicant representing himself was denied a security clearance due to concerns under Guideline B (Foreign Influence), Guideline C (Foreign Preference), Guideline E (Personal Conduct), and Guideline F (Financial Considerations). The denial was primarily based on the applicant's significant unresolved debts and his admission of falsifying his security clearance application.

Specifically, the applicant had substantial unpaid debts, with no evidence of payments made towards these obligations within the two years preceding the decision. Furthermore, the applicant admitted to falsifying information on his security clearance application. This admission shifted the burden of proof to the applicant to present mitigating evidence.

The appeal board affirmed the denial, noting that the applicant's admission of falsification relieved the government of the need to prove those allegations. The board concluded that the applicant failed to provide sufficient mitigating evidence to address the government's security concerns regarding his financial irresponsibility and lack of candor.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedFeb 7, 2008
Answer filed—Applicant represented himself.
Hearing held—Decided on written record.
Decision dateJul 29, 2008

Cite For

Adverse Impact of a Clearance Decision Is Not Relevant to Security Eligibility
Burden of Proof Shifts to Applicant Upon Admission of Falsification
Insufficient Mitigating Evidence Does Not Compel a Favorable Decision

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 issues under Guidelines C, B, F, and E. The applicant argued that the Judge erred in weighing evidence and applying mitigating factors. The Board affirmed the Judge's decision, finding no harmful error in the adverse ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark W. Harvey — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline CGuideline BGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred by not favorably applying any mitigating conditions and whole-person factors.
Erroneous finding of fact — raised by the applicantRejected
Applicant contended that the Judge's adverse finding regarding falsification was not sustainable due to lack of evidence of delinquency.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed the Judge's decision was arbitrary and capricious.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and affirmed the adverse clearance decision based on substantial evidence and proper application of the law.

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 D. Hipple
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 C; Guideline B; Guideline F; Guideline E DIGEST: At the time the case was submitted for decision, Applicant’s debts were still substantially unpaid, and Applicant had offered no proof of any payments in the last two years. Applicant’s admission regarding the falsification relieved the government of presenting evidence to establish the facts alleged therein. 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. Adverse decision affirmed. CASENO: 08-00899.a1 DATE: 07/29/2008 DATE: July 29, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-00899

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se Applicant also argues that loss of his clearance will adversely impact his personal and employment status. The adverse impact of a clearance decision on an applicant is not relevant or material to an applicant’s security eligibility. See ISCR Case No. 03-21012 at 4 (App. Bd. Aug. 31, 2005). The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 7, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline C (Foreign Preference), Guideline B (Foreign Influence), Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On April 15, 2008, after considering the record, Administrative Judge Mark W. Harvey 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 Guidelines F and E is sustainable. Finding no error, we affirm the Judge’s adverse clearance decision. With respect to the Guideline E allegation, the Judge found that Applicant had deliberately falsified his security clearance application (SCA) when in response to the questions as to whether he had been over 90 days delinquent and over 180 days delinquent on any debts, he answered “no.” In his appeal, Applicant argues that the Judge’s adverse finding is not sustainable because the government did not produce evidence to establish that the unpaid debts were delinquent for more than 90 or 180 days. In the alternative, he argues that the Judge erred, as a matter of law, by not favorably applying any mitigating conditions and whole-person factors because his falsification was an isolated incident and he had subsequently provided the correct information. With respect to the Guideline F allegations, the Judge found Applicant had two debts in the amount of $6,542 and $4,961 which had been placed for collection. In 2004, Applicant had made an agreement with a credit consolidation company (CCC) to resolve the debts, and had made monthly payments toward the agreement in 2004 and 2005. However, at the time the case was submitted for decision, the debts were still substantially unpaid, and Applicant had offered no proof of any payments to the CCC in the last two years. Additionally, there was no evidence that the CCC had negotiated with Applicant’s two creditors in good-faith or had in fact paid the creditors anything. In his appeal, Applicant argues that the Judge erred, as a matter of law, by not favorably applying any mitigating conditions and whole-person factors because his indebtedness was an isolated incident that had resulted from a loss of employment, and he had established a repayment plan sufficient to show that the problem is under control. Applicant’s arguments do not demonstrate that the Judge’s adverse decision under Guidelines F and E is arbitrary, capricious or contrary to law.1 In his Answer, Applicant admitted without explanation to the falsification of his SCA as alleged in SOR paragraph 4(b). That admission relieved the government of presenting evidence to establish the facts alleged therein. See Directive ¶ E3.1.14. As a result, the burden shifted to Applicant to present evidence to rebut, explain, extenuate, or mitigate the facts he had admitted, and he had the ultimate burden of persuasion as to obtaining a favorable clearance decision. See Directive ¶ E3.1.15. 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). Applicant elected to have his case decided on the written administrative record. As a result, the Judge did not have an opportunity to question him about the SOR allegations and evaluate his credibility in the context of a hearing. The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions and whole-person factors. The Judge found in favor of Applicant under Guidelines C and B. However, the Judge reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns under Guidelines F and E. The Board does not review a case de novo. The favorable record 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 2 (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). Accordingly, the Judge’s ultimate adverse decision under Guidelines F and E is sustainable.

ORDER

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