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ISCR Case 08-04599.a1 — CASE

ISCR Case 08-04599.a1denied

Case Headnote

ISCR Case No. 08-04599.a1

Jun 15, 2009· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The denial stemmed from a pattern of financial irresponsibility, including a dismissed Chapter 13 bankruptcy filing due to missed mortgage payments.

Further contributing to the denial were numerous unresolved delinquent debts, despite the applicant having been employed for over four years. The applicant himself acknowledged that his financial difficulties were a result of his "irresponsibility."

The appeal board affirmed the initial decision, finding no error in the judge's findings. Ultimately, the board concluded that granting the security clearance was not consistent with national security interests, leading to the denial of the applicant's request.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Key Rule Quoted

“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 issuedNov 6, 2008
Answer filed—Applicant represented himself (pro se) in the proceedings.
Hearing held—
Decision dateJun 15, 2009Appeal board affirmed the decision.

Cite For

Financial Irresponsibility as a Basis for Clearance Denial
Impact of Bankruptcy on Security Clearance Eligibility
Standards for Reviewing Judge's Findings in 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 a denial of a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCharles D. Ablard — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

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

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the decision was supported by substantial evidence and articulated a rational connection between the facts and the conclusion reached.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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; Guideline E DIGEST: Applicant submitted new evidence on appeal, which the Board cannot consider. Applicant has not demonstrated that the Judge’s decision is arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 08-04599.a1 DATE: 06/15/2009 DATE: June 15, 2009 In Re: ----------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04599

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 November 6, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. The Guideline E allegations were withdrawn at the hearing. On April 7, 2009, after the hearing, Administrative Judge Charles D. Ablard denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant filed for Chapter 13 bankruptcy protection in 2001. The petition was dismissed in 2003. The reason for the bankruptcy filing was Applicant’s having fallen behind in his mortgage payments. His in-laws subsequently purchased the house and assumed the payments. Applicant has numerous other delinquent debts for such things as consumer purchases, loans, etc. Applicant states that his financial problems arose due to his “irresponsibility.” Decision at 3. Applicant’s annual salary is $52,000 and his wife’s is $32,000. The Judge concluded that, as Applicant has been employed for over four years without resolving most of his debts, “he has failed to act responsibly” in regard to them. Id. at 5. In support of his appeal Applicant has submitted new matters not contained in the record, which the Board cannot consider. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 08-06518 at 2 (App. Bd. Mar. 3, 2009). Applicant contends that certain government exhibits assert facts that are not true. Even if Applicant is correct, he has provided no basis to conclude that the Judge’s findings of fact are erroneous or that he mis-weighed the evidence. (See Directive ¶ E3.1.32.1, explaining the meaning of substantial record evidence; and ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007) for discussion of the standard of review pertinent to a Judge’s weighing of the evidence.) After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the 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 Judge’s decision that “it is not clearly consistent with national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 7. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”).

ORDER

The Judge’s adverse security clearance decision 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