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ISCR Case 08-03721 — CASE

ISCR Case 08-03721denied

Case Headnote

ISCR Case No. 08-03721

deniedOct 28, 2009· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, represented by counsel, was denied a trustworthiness designation under Guideline F (Financial Considerations) due to insufficient evidence of financial responsibility. The denial was affirmed because the applicant failed to present relevant evidence during the hearing.

Specifically, the applicant did not provide evidence of recent debt discharges as part of the official record. The judge could not consider these new facts, as they were not presented during the hearing.

The applicant's arguments for applying mitigating conditions, particularly AG ¶ 20(d), were based on information not included in the original record. Consequently, the disqualifying conditions under AG ¶ 20 were not sufficiently mitigated, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant failed to present evidence of debt discharges during the hearing.
The judge cannot consider new evidence not included in the original record.
The applicant's arguments regarding mitigating conditions were based on facts not presented at the hearing.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 20(d)rejectedMitigating Condition 20(d)The judge did not apply this condition as the evidence was not part of the record.

Key Rule Quoted

“A Judge cannot reasonably be expected to consider facts and circumstances that were not presented to him or her and made part of the record.”

Procedural Posture

SOR issuedFeb 27, 2009
Answer filed—
Hearing heldAug 24, 2009
Decision dateOct 28, 2009

Cite For

Failure to Present Evidence During the Hearing Under Guideline F
Limitations on Introducing New Evidence on Appeal
Rejection of Mitigating Conditions Based on Lack of Record Evidence

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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’s appeal presented matters not contained in the record. A Judge cannot reasonably be expected to consider facts and circumstances that were not presented to him or her and made part of the record. Adverse decision affirmed. CASENO: 08-03721 DATE: 10/28/2009 DATE: October 28, 2009 In Re: ---------------- Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 08-03721

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Jonathan M. Andes, Esq., Personal Representative The Defense Office of Hearings and Appeals (DOHA) proposed to deny or revoke access to automated information systems in ADP-I/II/III sensitivity positions for Applicant. On February 27, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—trustworthiness 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 August 24, 2009, after the hearing, Administrative Judge Robert J. Tuider denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. “[T]he individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.” It is not made clear in Applicant’s brief whether the “discharge” of the mortgage debt was a part of the bankruptcy proceedings.

Hearing Transcript at p. 32. Applicant raises the following issue on appeal: whether the Judge erroneously failed to apply mitigating condition ¶ 20(d) in Applicant’s favor. For the following reasons, the Board affirms the Judge’s adverse trustworthiness determination. Large portions of Applicant’s appeal brief discuss matters that were not part of the record below. The main thrust of Applicant’s argument is that the Judge relied on outdated credit reports and did not take into consideration the fact that an outstanding, delinquent mortgage debt of $314,753 was discharged during early 2009, prior to the hearing, and that other debts in the amount of $39,753 have since been discharged in bankruptcy. Included in Applicant’s appeal is a more recent credit report, prepared after the hearing, which indicates that Applicant’s debt has been greatly reduced. Applicant’s brief introduces new evidence, which the Board cannot consider on appeal. Directive, ¶ E3.1.29. Moreover, the Judge cannot reasonably be expected to consider facts and circumstances that were not presented to him and made part of the record. There is no record evidence of a discharge in bankruptcy for Applicant. Likewise there is no record evidence of any “discharge” of the delinquent mortgage debt. Applicant represents that the resolution of the mortgage debt took place prior to the hearing. However, there is no mention of this in the record; and when discussing the mortgage debt during the hearing, Applicant indicated only that her house had been foreclosed upon and that she saw a “for sale” sign on the property when she drove by one day. Had additional or updated facts been available at the time of the hearing, it was up to Applicant to get those facts into the record. The Judge is under no obligation to obtain evidence to update the record. Applicant has failed to establish error.

ORDER

The Judge’s unfavorable trustworthiness determination is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board