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ISCR Case 08-03221.a1 — CASE

ISCR Case 08-03221.a1denied

Case Headnote

ISCR Case No. 08-03221.a1

Feb 25, 2009· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial issues. The judge determined that the applicant did not act responsibly in addressing her delinquent debts, despite the presence of some mitigating factors.

Specifically, the disqualifying condition under AG ¶ 20 was raised, indicating significant financial overextension. While the mitigating condition AG ¶ 20(b) was applied, acknowledging some efforts to resolve the debts, it was deemed insufficient. The judge concluded that the applicant's health problems did not adequately mitigate her financial issues or her attempts to repay the debts.

The appeal board affirmed the unfavorable decision, agreeing that the government had met its burden of proof regarding the applicant's financial overextension. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 20(b)appliedMitigating Condition 20(b)The judge acknowledged the applicant's health issues contributed to her financial situation but found it insufficient to overcome security concerns.

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 issuedMay 13, 2008
Answer filed—
Hearing heldOct 29, 2008
Decision dateFeb 25, 2009

Cite For

Denial of Security Clearance Due to Financial Irresponsibility Under Guideline F
Importance of Demonstrating Responsible Debt Management
Mitigating Factors Must Outweigh Disqualifying Conditions for Favorable 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 government failed to provide substantial evidence of financial overextension and that she had made efforts to mitigate her debts. The Board affirmed the Judge's decision, finding that the evidence supported the conclusion that the applicant did not act responsibly regarding her financial obligations.

Appealed bythe applicant

Applicant representationAttorney

Judge belowErin C. Hogan — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the government did not provide substantial evidence that she is financially overextended.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that she has made honest attempts to correct her financial situation.

Why the Board ruled this way

The Board found that the Judge's conclusions were supported by substantial evidence and that the Judge properly weighed the evidence presented, leading to a sustainable unfavorable decision regarding the applicant's security clearance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

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 Judge’s conclusion that Applicant was capable of doing more to resolve her delinquent debts and did not act responsibly under the circumstances is supported by the record evidence. Adverse decision affirmed. CASENO: 08-03221.a1 DATE: 02/25/2009 DATE: February 25, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03221

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Greg T. Rinckey, Esq. 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 October 29, 2008, 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 issues on appeal: whether the government met its burden of [T]he conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation), and the individual acted responsibly under the circumstances. The Judge also found, based on Applicant’s testimony about her husband’s debts: “Most of the medical debts were written off due to a public health policy of the state where they were living.” Decision at 3. establishing disqualifying conditions; and whether, in the alternative, Applicant established her case in mitigation of the Guideline F security concerns. For the following reasons, the Board affirms the Judge’s unfavorable decision. Applicant asserts that the government did not provide substantial evidence that Applicant is financially overextended. Applicant states that Department Counsel did not call any witnesses or introduce any statements by government employees regarding the bases for the SOR. Applicant further asserts that the documentary evidence introduced is either outdated or supports Applicant’s position. The fact that Department Counsel did not call witnesses or place the statements of government employees on the record is not dispositive of the issue of the sufficiency of the government’s proof. The government relied on Applicant’s answer to the SOR, Applicant’s answers to interrogatories and two credit reports to establish its case. After a review of the record evidence, the Board is satisfied that the government met its burden of production with regard to the security concerns stated in the SOR. Applicant argues that despite her inability to retire all her delinquent debts, she has been making an honest attempt to correct the situation and repay her debts. She states that she has been able to retire a number of her outstanding debts notwithstanding the difficulties presented by her late husband’s illnesses and her own medical problems. Applicant argues that because of these factors the Judge’s unfavorable decision should be reversed. Applicant has not demonstrated that the Judge has committed error. 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 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 Guideline F Mitigating Condition 20.b. applied to the case, acknowledging that Applicant’s husband’s illness and her own health issues contributed to her financial situation. The Judge also recognized that Applicant is making some efforts to repay her debts. However, the Judge reasonably explained why the applicability of that factor was of insufficient strength to overcome the government’s security concerns. Specifically, the Judge noted that Applicant has a good paying job and elects to contribute to her 401(k) account to the detriment of her ability to retire her substantial delinquent student loan debt, which has been outstanding for more than 12 years. The Judge’s conclusion that Applicant was capable of doing more to resolve her delinquent accounts and did not act responsibly under the circumstances is supported by the record evidence. The Judge’s conclusion that not enough time has passed to establish that Applicant will make good on all her outstanding debt is also supported by the record. 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