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ISCR Case 08-03845.a1 — CASE

ISCR Case 08-03845.a1denied

Case Headnote

ISCR Case No. 08-03845.a1

Feb 24, 2009· Hon. Jean E. Smallin· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to multiple tax liens and other debts. The appeal board affirmed this denial, concluding that the applicant had not demonstrated significant progress in resolving his financial obligations.

The Statement of Reasons (SOR) detailed several financial issues, which the applicant admitted. While the applicant claimed good-faith attempts to settle debts, the judge found insufficient evidence to mitigate the security concerns. Specifically, the applicant failed to provide adequate documentation demonstrating substantial improvement in his financial circumstances.

Disqualifying conditions F.1 and F.2 were raised, while mitigating conditions F.3 and F.4 were considered but ultimately not applied. The denial was based on the applicant's admitted financial issues and the lack of significant, verifiable progress in addressing them.

Conditions Referenced

Disqualifying

F.1raisedInability or Unwillingness to Satisfy Debts
F.2notedDeliberately Providing False or Misleading Information

Mitigating

F.3rejectedThe Conditions That Resulted in the Financial Difficulties Were Largely Beyond the Person's ControlThe judge concluded that the applicant had the means to improve his financial situation but did not take sufficient steps to do so.
F.4rejectedThe Person Has Made Good Faith Efforts to Repay Overdue Creditors or Otherwise Resolve DebtsThe applicant's claims of good-faith attempts were not supported by sufficient evidence.

Key Rule Quoted

“The application of disqualifying and mitigating conditions and whole-person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case.”
— ISCR Case No. 06-23384 at 3 (App. Bd. Nov. 23, 2007)

Procedural Posture

SOR issuedJul 11, 2008
Answer filed—
Hearing held—Applicant requested decision on the written record.
Decision dateFeb 24, 2009Appeal board decision affirmed the denial.

Cite For

Affirmation of Denial Based on Insufficient Financial Mitigation Under Guideline F
Importance of Demonstrating Significant Progress in Addressing Financial Obligations
Distinction Between Persuasive Authority and Binding Precedent in Security Clearance Cases

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 an applicant seeking a security clearance who was denied due to financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and did not consider all evidence. The Board affirmed the Judge's decision, finding no error in the weighing of evidence or application of law.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJoan Caton Anthony — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Administrative Judge's decision, affirming that the Judge properly weighed the evidence and applied the relevant legal standards.

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

Jean E. Smallin
William S. Fields
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: There is a rebuttable presumption that the Administrative Judge considered all the evidence. The cases cited by Applicant are distinguishable on there facts. Adverse decision affirmed. CASENO: 08-03845.a1 DATE: 02/24/2009 DATE: February 24, 2009 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03845

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmonds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 11, 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 Applicant provided a copy of a bank statement showing a payment of $500 to an unspecified payee. However, the credit report from June 2008 shows the debt as settled. Decision at 3. The Judge found in Applicant’s favor on this debt. Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested the case be decided on the written record. On December 4, 2008, after considering the record, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Appeal raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. Specifically, Applicant argues that the Judge should have found that his financial situation has been mitigated by his good-faith attempts to settle his debts. Applicant contends that the Judge did not take into account all of the evidence he provided as to those attempts. Applicant cites prior DOHA decisions which he believes are similar to his, in which a security clearance was granted. Finding no error, we affirm the Judge’s unfavorable security clearance decision. Applicant had debts discharged in bankruptcy in December 2002. Applicant’s SOR lists seven other debts. Three of those are state tax liens. Applicant admits the existence of the liens, but disputes the amounts in the SOR. Applicant states that he paid off one debt of $500, but provided limited documentation. Applicant agrees to pay off a debt of $43 when he learns the identity of the creditor. He states that he made a payment toward a debt of $1,809, but has not provided documentation. Applicant denies a debt in the amount of $14,078, but admits that the debt involves a car for which he arranged a voluntary repossession. There is a rebuttable presumption that the Judge considered all the record evidence unless the Judge specifically states otherwise. See, e.g., ISCR Case No. 07-18303 at 2 (App. Bd. Nov. 13, 2008). Applicant admitted several of the SOR allegations against him. The burden then shifted to Applicant to extenuate or mitigate the security concerns raised by those allegations. Directive E3.1.15. The Judge concluded that Applicant did not present evidence sufficient to overcome the security concerns raised. The application of disqualifying and mitigating conditions and whole- person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security determination. 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. 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 that 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. 06-23384 at 3 (App. Bd. Nov. 23, 2007). Applicant’s citation of other Hearing Office decisions he contends are similar to his case does not demonstrate error on the part of the Judge. While decisions by Hearing Office Judges in other cases may be cited as persuasive authority, those cases are not binding legal precedent which a Hearing Office Judge must follow in another situation. Applicant’s reliance on other Hearing Office decisions does not demonstrate that the Judge erred in this case. See, e.g., ISCR Case No. 04-04543 at 3 (App. Bd. Sep. 14, 2005). Moreover, the cases Applicant cites are distinguishable from his case, since in those cases the Applicant had made significant progress in improving his/her financial situation. In this case, the Judge concluded that Applicant had not taken sufficient steps toward financial improvement, in spite of having the apparent means to do so. Decision at 6. The Judge’s decision is sustainable.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board