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ISCR Case 08-01616.a1 — CASE

ISCR Case 08-01616.a1denied

Case Headnote

ISCR Case No. 08-01616.a1

Jul 7, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline F (Financial Considerations) due to significant financial concerns. These issues included multiple delinquent debts and child support arrears.

The government established its case based on the applicant's admissions regarding numerous outstanding debts. While the applicant presented some evidence of efforts to address his financial difficulties, the judge ultimately determined that this mitigation was insufficient to resolve all security concerns.

Specifically, the applicant failed to provide adequate evidence to fully mitigate the financial issues raised. Consequently, the appeal board affirmed the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedThe Behavior Was Not Recent.The applicant's financial difficulties were ongoing and not resolved.
AG ¶ 21(b)rejectedThe Conditions That Resulted in the Behavior Were Beyond the Person's Control.While the applicant faced unemployment and family issues, these did not sufficiently mitigate the financial concerns.
AG ¶ 21(c)notedThe Person Has Received or Is Receiving Counseling for the Problem.
AG ¶ 21(d)rejectedThe Person Has Established a Good Track Record of Debt Repayment.The applicant did not demonstrate a consistent track record of resolving debts.
AG ¶ 21(e)notedThe Person Has a Reasonable Plan for Debt Repayment.
AG ¶ 21(f)appliedThe Person Has Taken Significant Steps to Reduce or Eliminate the Financial Problem.The applicant had taken some steps to address child support arrears and consolidate student loans.

Key Rule Quoted

“The ultimate burden of persuasion to obtain a favorable security clearance decision rests with Applicant.”
— Directive ¶ E3.1.15

Procedural Posture

SOR issuedDec 10, 2008
Answer filed—
Hearing heldFeb 25, 2009
Decision dateJul 7, 2009

Cite For

Burden of Proof in Security Clearance Cases Under Guideline F
Insufficient Evidence of Mitigation in Financial Concerns
Affirmation of Adverse Decisions Based on Applicant's Admissions of Debt

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 was denied due to financial issues under Guideline F. The applicant argued that the judge's decision was arbitrary and did not properly consider his evidence of mitigation. The Board affirmed the judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert C. Wesley — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Applicant did not sufficiently mitigate the financial concerns raised against him.

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 DIGEST: Applicant’s admission established the government’s case. The burden shifted to Applicant to explain or mitigate the security concerns arising from his financial situation. Adverse decision affirmed. CASENO: 08-01616.a1 DATE: 07/07/2009 DATE: July 7, 2009 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-01616

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se Applicant objects to the fact that the credit report offered into evidence by the government was dated September 2008 and contained information which was outdated by the date of the hearing, February 25, 2009. The record was held open for Applicant to submit, and he did submit, a more recent credit report. In his decision, the Judge referred to the credit report Applicant submitted. Applicant has not demonstrated error in this regard. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 10, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On April 16, 2009, after the hearing, Administrative Judge Robert C. Wesley denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. On appeal, Applicant raises the following issue: whether the Judge’s decision is arbitrary, capricious, or contrary to law. Specifically, Applicant argues that the government did not meet its burden of proving that he should not be granted a security clearance; and he contends that the Judge committed error in not considering the evidence Applicant submitted and in not giving proper weight to Applicant’s evidence of mitigation. Finding no error, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant was divorced from his first wife in June 2002 and pays child support for a child from that marriage. He remarried in May 2004. Applicant was unemployed between April and June 2004 and between September and December 2006. The periods of unemployment were partially responsible for Applicant’s financial difficulties, including a child support arrearage. Applicant’s financial difficulties were further exacerbated by his care for an ailing parent. Applicant’s debts include credit card accounts, medical bills, the child support arrearage, a number of student loans, and a judgment associated with a car loan. When Applicant was given the opportunity to provide documentation of his efforts to address his outstanding debts, he demonstrated that he had significantly decreased the amount of his child support arrearage and consolidated his student loans into one account. However, Applicant did not provide evidence that he had resolved or disputed his other delinquent debts. Applicant argues that the government has not met its burden of proving that he should not be granted a security clearance. Applicant misstates the burden of proof. Under the Directive, the government presents evidence raising security concerns. Then the burden shifts to Applicant to rebut, explain, extenuate, or mitigate the concerns. The ultimate burden of persuasion to obtain a favorable security clearance decision rests with Applicant. See Directive ¶ E3.1.15; and ISCR Case No. 06-20062 at 2 (App. Bd. Jul. 15, 2008). In this case, an SOR was issued showing that Applicant owed delinquent debts. In his response to the SOR, Applicant offered explanations of his attempts to resolve some of the debts. For six of the debts, he responded that he had done nothing to resolve them. In effect, Applicant admitted many of the debts and thus established the government’s case. The burden then shifted to Applicant to explain or mitigate his financial difficulties. Applicant had testified that he had arranged for his multiple student loans to be consolidated into one loan and that the payment amount had been reduced. One of the documents Applicant submitted was related to that transaction. Applicant also argues that the Judge did not consider the whole person. The Board notes that the Judge’s decision explicitly discusses Applicant’s debts in the context of the whole person. Decision at 6. Applicant also contends that the Judge did not consider the evidence he submitted and did not give proper weight to his evidence of mitigation. When the record was held open after the hearing for Applicant to submit further documentation of his efforts to improve his financial situation, he submitted a letter regarding his involvement at his child’s school, pay statements showing deductions pursuant to a court order, information regarding his student loans, and a credit report. Applicant believes that the Judge did not consider that documentation. There is a rebuttable presumption that the Judge has considered all the evidence in a case unless the record clearly demonstrates otherwise; and the Judge is not required to mention or discuss every piece of record evidence. See, e.g., ISCR Case No. 07-18303 at 2 (App. Bd. Nov. 13, 2008). In this case, it is clear that the Judge did consider the information Applicant submitted. In the Analysis section of his decision, the Judge stated that Applicant had taken steps to resolve his child support arrearage and student loans, and the Judge found in Applicant’s favor as to the arrearage and all but one of the student loan items in the SOR. Decision at 5, 6. The Judge specifically referred to the credit report Applicant provided in stating that the fact that some of Applicant’s delinquent debts no longer appeared on that credit report did not demonstrate resolution of those debts. Id. at 3. Applicant argues that he has mitigated any security concerns which might exist under Guideline F and that the Judge did not give adequate weight to his evidence of mitigation. The application of disqualifying and mitigating conditions and whole-person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security determination. 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. 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 that 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. 06-23384 at 3 (App. Bd. Nov. 23, 2007). A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant against his financial history and considered the possible application of relevant mitigating conditions and factors. The Judge reasonably explained why the evidence Applicant had presented in mitigation was insufficient to overcome 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. 08-01105 at 2-3 (App. Bd. Dec. 15, 2008). 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, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines 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.’” Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988). Accordingly, the Judge’s adverse decision is sustainable.

ORDER

The Judge’s unfavorable security clearance decision 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