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ISCR Case 08-03071.a1 — CASE

ISCR Case 08-03071.a1denied

Case Headnote

ISCR Case No. 08-03071.a1

Mar 2, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline F (Financial Considerations) due to significant unresolved financial issues. The applicant had eight debts totaling approximately $247,000. Evidence presented showed that only one of these debts had been paid, indicating persistent financial problems.

The judge determined that while some mitigating evidence was presented, it was insufficient to overcome the government's concerns regarding the applicant's financial stability. Specifically, the judge found that the unfavorable evidence, including the substantial outstanding debt, outweighed the favorable evidence, which included the applicant's wife's illness.

Consequently, the security clearance was denied, and this decision was subsequently affirmed on appeal.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge found that the mitigating evidence was insufficient to overcome the government's security concerns.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel a favorable security clearance decision.”

Procedural Posture

SOR issuedMay 13, 2008
Answer filed—
Hearing heldDec 31, 2008
Decision dateMar 2, 2009

Cite For

Ongoing Financial Issues Under Guideline F
Insufficient Mitigating Evidence to Overcome Disqualifying Financial Conduct
The Weighing of Evidence in Security Clearance Decisions

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 financial considerations under Guideline F. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the evidence supported the conclusion that the Applicant's financial issues were ongoing and that the mitigating factors did not outweigh the security concerns.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip S. Howe — 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 argued that the Judge's adverse clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge reasonably concluded that the Applicant's financial problems were ongoing and that the mitigating evidence did not outweigh the unfavorable evidence. The Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jean E. Smallin
James E. Moody

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 had 8 debts totaling approximately $247,000. The Judge found that of those debts, none have been proven to be paid except the last. Thus, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing. The Judge discussed the role Applicant’s wife’s illness played in his financial difficulties. The presence of some mitigating evidence does not alone compel a favorable security clearance decision. The Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. Adverse decision affirmed. CASENO: 08-03071.a1 DATE: 03/02/2009 DATE: March 2, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03071

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 May 13, 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 December 31, 2008, after the hearing, Administrative Judge Philip S. Howe 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 is arbitrary, capricious or contrary to law. In this case, the SOR alleged that Applicant had accumulated 8 debts totaling approximately $247,000. Decision at 2. The Judge found that: “Of those eight debts, none have been proven to be paid except the last listed debt in Paragraph 1.h.” Id. 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 explicitly discussed Applicant’s wife’s illness and the role that played in his recent financial difficulties. 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). The Judge weighed the mitigating evidence offered by Applicant against the recency and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He reasonably explained why the mitigating evidence 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 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)). 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board