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ISCR Case 08-02414.a1 — CASE

ISCR Case 08-02414.a1denied

Case Headnote

ISCR Case No. 08-02414.a1

Jun 4, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline F (Financial Considerations) due to significant financial issues. The Administrative Judge identified ten outstanding debts that the applicant had not adequately addressed. The applicant also failed to present sufficient mitigating evidence to counter the government's concerns regarding these financial obligations.

The Administrative Judge applied Disqualifying Condition AG ¶ 19, noting the applicant's history of not meeting financial obligations. While Mitigating Condition AG ¶ 20 was considered, it was not found sufficient to overcome the security concerns.

The applicant's appeal was subsequently denied. His claims of improper representation and confusion regarding his rights were deemed insufficient to overturn the initial decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe Judge found that the applicant's financial problems were ongoing and did not mitigate the government's security concerns.

Key Rule Quoted

“Department Counsel is not responsible for presenting evidence in extenuation or mitigation of an applicant’s security concerns.”

Procedural Posture

SOR issuedOct 31, 2008
Answer filed—Applicant requested decision on written record.
Hearing held—No hearing; decision made on written record.
Decision dateJun 4, 2009

Cite For

Applicant's Responsibility to Present Evidence in Their Favor
Ongoing Financial Issues as a Basis for Denial Under Guideline F
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 an applicant seeking a security clearance who was denied due to financial considerations under Guideline F. The applicant argued that the Department Counsel misrepresented his financial situation and that the Judge did not adequately consider mitigating evidence. The Board affirmed the Judge's decision, finding it supported by the record and that the applicant did not establish error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's adverse decision is not supported by the record evidence.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argues that the Judge did not give adequate weight to matters in mitigation.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant failed to demonstrate harmful error in the Judge's findings or conclusions.

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
Michael D. Hipple
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: Department Counsel is not responsible for presenting evidence in extenuation or mitigation of an applicant’s security concerns. Applicant bears responsibility for presenting his or her case. Adverse decision affirmed. CASENO: 08-02414.a1 DATE: 06/04/2009 DATE: June 4, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-02414

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 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) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On March 27, 2009, after considering the record, Administrative Judge Richard A. Cefola 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 issues on appeal: whether Department Counsel assigned to the case improperly characterized and represented his case to the Judge, and whether the Judge’s adverse decision is supported by the record evidence. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge found that Applicant acquired ten outstanding past due or charged off debts. The Judge also found that Applicant was unemployed between March and June of 1999, and when he found work again, his pay was substantially less. The Judge acknowledged that this history caused Applicant to have financial difficulties. The Judge concluded that the circumstances under which the debts accumulated did not mitigate the government’s security concerns because Applicant has done little to address his very substantial past due indebtedness. Applicant complains that Department Counsel did not give his financial situation the proper representation that it deserved, and Department Counsel failed to present his financial status from 2003 to the present as being responsible and characterized by the making of on-time payments. Applicant claims some confusion as to what his rights in the process were. Applicant also claims that certain debts were satisfied prior to Department Counsel’s submission of the File of Relevant Material (FORM) that constituted the government’s case. Applicant’s appeal brief and attachments reference matters that were not made part of the record below. The Board cannot consider new evidence on appeal. Directive, ¶ E3.1.29. Contrary to Applicant’s assertions, Department Counsel was not responsible for presenting evidence wherein Applicant’s financial circumstances would be presented in a light that was favorable to him. After the issuance of the SOR, DOHA adjudications are adversarial proceedings. See, e.g., ISCR Case No. 01-10347 at 3-4 (App. Bd. Sep. 17, 2002). In this setting, an applicant is responsible for presenting his or her case. The case file shows that Applicant freely chose to have his case determined without a hearing, was provided a copy of the Directive, and was fully apprised of his right to submit material that he wished the Judge to consider. Applicant did not submit any response to the FORM. The case file also shows that Applicant was informed of his right to be represented by an attorney in the preparation of his response to the government’s FORM. This placed him on reasonable notice that he was responsible for presenting his case, and that neither the Judge nor Department Counsel was responsible for assisting him in doing so. Applicant has failed to establish error. Applicant contends that the Judge did not give adequate weight to matters in mitigation. Applicant’s assertion does not demonstrate that the Judge erred. 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).

In this case, the Judge found that Applicant had a lengthy and serious history of not meeting financial obligations. At the time of the close of the record, Applicant still had substantial delinquent debts. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007). 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. He reasonably explained why the evidence of mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfs. 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)). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, 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