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ISCR 08-03128: Guideline F security clearance appeal, denied (2008) · CASE

ISCR Case 08-03128denied

Case headnote

ISCR Case No. 08-03128

Oct 24, 2008· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing herself, was denied under Guideline F (Financial Considerations) due to a significant and ongoing history of unmet financial obligations. The judge found that the applicant's financial issues were serious and persistent, raising disqualifying conditions under Adjudicative Guideline (AG) ¶ 20.

Specifically, the applicant had a lengthy record of failing to meet financial commitments, and at the time of the decision, substantial delinquent debts remained unresolved. While the applicant presented some mitigating evidence, the judge determined it was insufficient to overcome the government's security concerns.

Therefore, despite the application of some mitigating conditions under AG ¶ 21, the severity and continuation of the applicant's financial difficulties led to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

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

Key rule quoted

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

Procedural posture

SOR issuedApr 18, 2008
Answer filed—
Hearing held—Applicant requested the case be decided on the written record.
Decision dateOct 24, 2008

Cite for

Insufficient Mitigating Evidence Under Guideline F
Ongoing Financial Issues as a Basis for Denial
The Judge's Discretion in Weighing Evidence

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 her request for a security clearance based on financial considerations. The applicant argued that the Judge's decision was arbitrary and did not adequately weigh mitigating evidence. The Board affirmed the Judge's decision, finding it sustainable based on the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert J. Tuider denied the clearance (split findings)

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 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 the unfavorable decision, including a rational connection between the facts and the choice made.

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)
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 DIGEST: The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. Applicant here had a lengthy and serious history of not meeting financial obligations. Adverse decision affirmed. CASENO: 08-03128 DATE: 10/24/2008 DATE: October 24, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03128

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 April 18, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of Applicant makes two assertions regarding the Judge’s findings of fact. She states that the Judge made an erroneous finding regarding her daughter’s age, and the Judge neglected to mention Applicant’s receipt of a bonus award from her employer in March 2008. The error regarding the daughter’s age is of no consequence, as it had no bearing on the outcome of the security clearance decision. The Judge’s failure to mention the bonus award is not error. There is no requirement that the Judge mention every piece of evidence in his security clearance decision and there is also a presumption that the Judge considered the entire record unless there is evidence to the contrary. The Board will not presume that the Judge failed to consider Applicant’s bonus award. Some of the efforts described on appeal are in addition to the efforts contained in the record below. The Board cannot consider Applicant’s new evidence on appeal. See Directive ¶ E3.1.29. 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 August 20, 2008, after considering the record (which included submissions by Department Counsel and Applicant), Administrative Judge Robert J. Tuider 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 essentially contends that the Judge’s adverse decision should be reversed because the Judge did not give adequate weight to the mitigating evidence and other favorable evidence about her life and her military career. In support of her requests, Applicant summarizes the favorable evidence she presented below and describes her ongoing efforts to resolve her financial problems.2 Applicant’s argument 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 found in favor of Applicant as to two of the factual allegations listed in the SOR. However, he reasonably explained why the evidence which Applicant had presented in 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 his 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 under Guideline F is sustainable.

ORDER

The decision of the Judge 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