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ISCR Case 08-00967.a1 — CASE

ISCR Case 08-00967.a1denied

Case Headnote

ISCR Case No. 08-00967.a1

Mar 19, 2009· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily due to significant financial issues under Guideline F (Financial Considerations). The judge determined that the applicant had made insufficient progress in addressing his total indebtedness, which raised substantial security concerns.

While the applicant presented some mitigating evidence, specifically AG ¶ 21(a), AG ¶ 21(b), and AG ¶ 21(c), these were not sufficient to overcome the disqualifying conditions raised under AG ¶ 20. The decision underscored that granting a security clearance must align with national security interests.

Ultimately, the judge concluded that the applicant's unresolved financial situation presented an unacceptable security risk, leading to the denial of the clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedThe Behavior Was Not RecentThe judge noted that the applicant's recent repayment efforts were insufficient given the totality of his indebtedness.
AG ¶ 21(b)rejectedThe Conditions That Resulted in the Behavior Were Beyond the Person's ControlThe judge considered the applicant's circumstances but found them insufficient to mitigate the security concerns.
AG ¶ 21(c)appliedThe Person Has Taken Positive Steps to Reduce or Eliminate the Financial ProblemsThe judge acknowledged the applicant's repayment efforts but deemed them inadequate.

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 issuedAug 15, 2008
Answer filed—
Hearing heldJan 21, 2009
Decision dateMar 19, 2009

Cite For

Insufficient Progress in Addressing Financial Issues Under Guideline F
Mitigating Evidence Does Not Compel a Favorable Decision
The Necessity for Security Clearance Decisions to Align with National Security Interests

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on financial considerations. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the evidence did not support the applicant's claims and that the Judge properly weighed the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowErin C. Hogan — 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 her decision, including a rational connection between the facts found and the choice made.

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

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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: The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decisions. The Judge noted that Applicant had made insufficient progress in light of his total indebtedness. Adverse decision affirmed CASENO: 08-00967.a1 DATE: 03/19/2009 DATE: March 20, 2009 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-00967

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 August 15, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) The Judge ruled in Applicant’s favor regarding the SOR allegations under Guidelines E and SOR paragraphs 1.c., 1.d., 1.e., and 1.j. Those favorable rulings are not at issue on appeal. and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 21, 2009, after the hearing, Administrative Judge Erin C. Hogan 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 acknowledges that he has not satisfied his debts. He asserts that he is a responsible, trustworthy person, and the fact that he has financial problems does not mean that he would compromise classified information. Applicant maintains that his indebtedness grew out of situations that were not his responsibility, and that he is acting responsibly to correct his debt delinquencies and is making payments to retire his debts. These assertions do not establish error on the part of the Judge on this record. Applicant’s brief cites to new evidence which the Board cannot consider. See, Directive E3.1.29. 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. She concluded that, notwithstanding the partial applicability of three Guideline F Mitigating Conditions, the evidence in mitigation was of insufficient strength to overcome the government’s security concerns. Specifically, the Judge noted that Applicant’s recent repayment efforts represent a start, but Applicant has made insufficient progress in light of the totality of his indebtedness. The Judge particularly noted that Applicant has taken no steps to resolve nine of his debts. These conclusions are reasonably supported by the record. The Judge explicitly considered Applicant’s periods of unemployment and the health condition of Applicant’s wife. 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)). “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 under Guideline F is 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board