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ISCR Case 08-03273.a1 — CASE

ISCR Case 08-03273.a1denied

Case Headnote

ISCR Case No. 08-03273.a1

May 5, 2009· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing herself, was denied a security clearance under Guideline F (Financial Considerations) due to unresolved debts totaling $16,984. The denial was based on Disqualifying Condition F.3, which addresses a history of not meeting financial obligations.

The applicant presented mitigating evidence, citing financial difficulties that arose from a serious car accident and subsequent unemployment. While Mitigating Conditions F.2 and F.3 were considered, the judge determined that these circumstances were insufficient to overcome the security concerns.

Ultimately, the judge found that the applicant failed to sufficiently mitigate the security concerns, despite acknowledging some debts and presenting evidence of financial hardship. The presence of mitigating evidence did not compel a favorable decision, resulting in the denial of the security clearance.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Difficulties Were Beyond the Applicant's ControlThe judge found the applicant's explanation insufficient to support a security clearance.
F.3rejectedThe Applicant Has Made Efforts to Repay DebtsThe judge determined that the applicant's efforts did not outweigh the financial concerns.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel a Judge to render a favorable decision.”

Procedural Posture

SOR issuedMay 22, 2008
Answer filed—
Hearing heldDec 18, 2008
Decision dateMay 5, 2009

Cite For

Insufficient Mitigation of Financial Difficulties Under Guideline F
The Weighing of Evidence in Security Clearance Decisions
The Impact of Personal Circumstances on Financial Considerations for Security Clearances

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 findings were not supported by evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error that would change the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — 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 Judge did not give adequate weight to her mitigating evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed the Judge's decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantRejected
Applicant pointed out factual errors in the Judge's decision.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge properly weighed the evidence presented. The presence of some mitigating evidence did not compel a favorable decision, and the Judge's conclusions regarding the applicant's financial situation were sustainable.

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
Jean E. Smallin

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 a Judge to render a favorable decision. The Judge’s conclusion that Applicant had failed to mitigate the Guideline F security concerns in her case is sustainable. Adverse decisions affirmed. CASENO: 08-03273.a1 DATE: 05/05/2009 DATE: May 5, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03273

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 22, 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 18, 2008, after the hearing, Administrative Judge Paul J. Mason denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s findings are supported Applicant disagrees with the Judge’s statement that Applicant had discovered she needed additional surgery in early 2008, whereas she states that she found she needed it in 2000 and for a reason different from that cited by the Judge. Even if Applicant had explained this earlier, it would not have changed the result here. by relevant evidence; and whether the Judge’s decision is arbitrary, capricious, or contrary to law. Specifically, Applicant points out factual errors in the Judge’s decision. Applicant also argues that the Judge should have found her financial situation to be mitigated. The Judge made the following pertinent findings of fact: The SOR alleges 10 debts totaling $16,984. Prior to the hearing, Applicant admitted to three of the debts. She denied the others because she said she did not recognize the names of the creditors after the debts were sold to collection agencies. At the hearing, Applicant acknowledged the other debts. Applicant’s financial difficulties began after a serious car accident in December 1997, which caused her to lose her job. After an orthopedic surgeon inserted metal plates and screws in her limbs, he advised her to file for disability because arthritis would eventually prevent her from working. Applicant tried to find a job that would allow her to work in a seated position. She found such a job in early 2000, but lost it when the company was sold in February 2002. Applicant began receiving Social Security Disability benefits in March 2003. While Applicant was unemployed, she lived with different relatives for periods of time. Applicant found an apartment in 2003, although her income is not enough to pay her rent and her living expenses. At times, Applicant has received assistance from her sons and her sister to help her pay her expenses. Sometime in or after September 2007, Applicant began working part-time at a job which could accommodate her medical situation. She had to stop working in May 2008 when her interim security clearance was rescinded. Applicant’s supervisor and the head of human resources at that job testified on her behalf. In her appeal, Applicant identifies statements in the Judge’s decision which she considers to be erroneous. In explaining why some of the statements are incorrect, Applicant presents information which was not presented previously. The Board cannot consider new evidence on appeal. See Directive ¶ E3.1.29. After reviewing the record, the Board concludes that the Judge’s material findings of security concern are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 07-05434 at 2 (App. Bd. Feb. 24, 2009). In her appeal, Applicant also argues that the Judge did not give adequate weight to her mitigating evidence. The Judge referred to Applicant’s testimony and discussed the possible application of mitigating conditions in Applicant’s case. 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. 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 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. 07-00553 at 2 (May 23, 2008). The record supports the Judge’s conclusions regarding Applicant’s financial situation. Applicant states that the hearing upset her and made her feel like a criminal. While Applicant presented an explanation for her current financial difficulties, the Judge found that explanation insufficient to support a security clearance at this time. The Judge’s decision is not a reflection on Applicant’s character. After reviewing the record as a whole, 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)). “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). Accordingly, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The Judge’s decision denying Application a security clearance 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board